The pandectes of the law of nations contayning seuerall discourses of the questions, points, and matters of law, wherein the nations of the world doe consent and accord. Giuing great light to the vnderstanding and opening of the principall obiects, questions, rules, and cases of the ciuill law, and common lawe of this realme of England. Compiled by William Fulbecke.

A PARALLELE OR CONFERENCE OF THE CIVIL Law , the CANON Law , and the COMMON Law of this Realme of England .

Wherein the agreement and disagreement of these three Lawes , and the causes and reasons of the said agreement and disagreement , are opened and discussed .

Digested in sundry Dialogues By WILLIAM FVLBECKE .

At the end of these Dialogues is annexed a Table of the Sections or Diuisions of the principall points , matters , and questions , which are handled in euery Dialogue .

AT LONDON Printed for the Company of Stationers .

Anno Domini 1618.

TO THE MOST GRATIous and reuerend Father in God IOHN by the prouidence of God Lord Archbishop of Canterburie , Primate and Metropolitane of all England , and one of the Lords of her Maiesties most honorable Priuie Councell .

RIght Reuerend , right Honorable , and my singular good Lord , as nothing is more comfortable to the Mariner , or Sea-man , then after a great tempest to possesse a pleasant calme , and gratefull serenitie : so nothing is more plausible and acceptable , to them that haue employed , and exercised themselues in any parte of learning , then after their long and laborious trauaile , to enioy the warmth & bright reflection of an honorable countenance , this partly , and ( if the great arrearage of dutie , and thankfulnes , which I owe to your Grace , doe not challenge prioritie ) especially hath moued and inforced me , to present to your honorable view and patronage these tripartite Dialogues , to whom her sacred Maiestie hath committed the executing and maintenance of the Ciuill and Canon laws , in these Dialogues by my slender pencill rather delineated , then described : and because the Common lawe cannot otherwise bee diuided from these twaine , then the flower from the roote and stalke , therefore this entier discourse I haue wholly committed to your Graces tuition and disposall : In which I sought rather to profite the vnderstanding , then to please the sense with a plaufible , copious , and polished stile , or with foreine conceipts not belonging to the titles of the lawe , which I handle : assuring my selfe , that as verball delights , and affected vanities are to your Lordship odious , irkesome , and of no accompt : so they are in trueth to the gaping eares of this curious age , very snares , and Syrens . Wherefore humbly referring my selfe to your Graces excellent wisdome , and abundant clemency , for the imparting of a fauorable regard and countenance to these my vnworthy labours , I beseech the almighty God with the most submisse deuotion of my heart , that the daies of your life ( which the Lord of life multiplie ) may be the degrees of your happines , to the great good of this Church , and Common weale , to the exceeding comfort , and contentment of such as be studious of vertue , law , and equitie , and to the immortall propagation of your fame and memory through all ages , and times , vntill the last time of all ages .

Your Graces most humble and bounden William Fulbecke .

TO THE COVRTEous Reader .

CVrteous Reader it is obserued by Seneca , that in one and the same plotte of ground , the Hound seeketh for a Hare , the Oxe for good grasse , and the Storke for a Snake or a Lizard , Senec . epist. 109. In codē prato bos herbam quaetit , canis leporem , ciconia lacertam . and my desire was , that in this booke of Dialogues , the seuerall students of the Canon lawe , the Ciuill law , and the Common lawe of this Realme , might haue diuerse repast according to their disagreeing appetites , Horat . Tres mihi conuiuaeprope dissentire videntur ; Poscentes vario multum diuersa palato . & matters suteable to their distinct contemplations , for it seemed straunge vnto me , that these three lawes , should not as the three Graces haue their handes linked together , and their lookes directly fixed the one vpon the other , but like the two faces of Ianus , the one should be turned from the other , & should neuer looke toward , or vpon the other : and weighing with my selfe , that these lawes are the sinewes of a state , the Sciences of gouernment , & the arts of a common weale , I haue seriously & often wished , that some ioint discourse might be made of these three excellent lawes , whereby the agreement and disagreement of them , and the grounds , and reasons therof might euidently appeare by some very skilfull in these Lawes well grounded , and if it might be , which I neuer yet saw , professed in the same : and in such a plentiful haruest of florishing wits in this land , which are adorned with great varietie of reading , as the firmament with diuersitie of starres , I could not but expect the euent of so good a thing : yet in the end , when I saw many daies ouerpasse , and slide away without the successe of my desire , taking my wish to bee somewhat more , then Vigilantis somnium ; I thought it better to make some trial of my slender abilitie , to put my wishe in practise , & to lay that heauie burden vpon mine own feeble shoulders , then that such a profitable thing should be altogether frustrate of attempt , howsoeuer voide of effect : by that meane ( if it might be ) to excite , and stirre vp some other , quem Musae comitantur & artes , to vndertake this taske , and farre more fully iudiciously , and learnedly to accomplish this busines . For I remember the saying of D. Bartolus , a principall author in the Ciuill Lawe , that those things , which are not very well inuented , yet may bee profitable in this respect , because they may perhaps prouoke others to the inuestigation of the truth Prosunt minus recte excogitata , cum alios incitent , saltem ad veritatis inuestigationem . Bartol . in tract . test . . Great and forcible reasons haue mooued mee to haue in speciall regard the knowledge of the lawe , considering that by the good constitution , establishment , and obseruation therof , all common weales , which are growne to hight and preheminence , haue had their prosperous rising , their abundant increase , and their fortunate continuance ; but by the want , breach , or chaunge of good Lawes , nothing hath insued but the desolation , downefall , and ineuitable ruine of many dominions , and estates . Not to troble your patience with instances of pettie prouinces , and inferiour regiments , by your fauours let the foure most eminent common weales of the world be tried by this touchstone , and let my assertion by their destinated courses bee measured and examined ; The foure common weales I speake of , were the Cretensian , Athenian , Lacedemonian , and Romane estates : the first was of all these the formost and most auncient , famosed by the lawes of Minos , who so studiously imployed his paines in the making and amending of lawes for the space of nine yeares together , that this Common weale being well setled , was well fenced against future mishaps , and continued in great prosperitie till the Romanes grewe too strong : The Athenian Common weale was first guided by Dracoes Lawes , written not with inke , but with bloud , rather terrours then rules of estate : wherfore these for their too great asperity being cancelled , and antiquated , Solon that sage Father , being ( contrarie to the foolish Prouerbe or rather by-woord ) both a great Clerke , and an excellent wise man , and hauing the whole administration of that estate committed to his handes did enact , and establishe Lawes with such moderation , and equitie , that the greatest parte of the Lawe called the Lawes of of the xij . Tables , that absolute president , & worthy platforme of all Iustice ( to the full opening and cleare expounding , of which it might bee wished that some very learned man would put to his painefull hand ) are said to be the fruite and issue of his deep , and peereles iudgement . The Lacedemonian common weale was established by Lycurgus that famous lawemaker , by whose profitable directions & ordinances that common weale did for the space of sixe hundred yeeres exceedingly flourishe in equitie and glorie , but when the neglect of these Lawes had entred and pearced into the body of that common weale , and wantonesse , licentiousnes and desire of money had encroched into the place of these commodious orders , they lost their renowme with their libertie , and the deformitie of mens manners did wholy disfigure the beautifull and decent proportion of that goodlie Common weale . Now I come by your fauour to the Romaine estate , that is , to the miracle of miracles ( if any humane thing may beare so gorgious a title ) surpassing farre her predecessours in greatnes , happines , and continuance of time : the cause of which rare felicitie is no other in truth , then the prescript of good Lawes , made by Numa , and others , howsoeuer some partially affected , do as their seuerall fansies led thee , ascribe & attribut the same to seueral causes , whose censures & opinions giue me leaue by your patience , and permssion in humblenes and modesty to examine . That saying of Cicero seemeth not true vnto mee , that military vertue hath purchased to the people of Rome credit , & to the City eternall glory , and hath made the whole world obedient to that Empyre : Cicer . pro M●rena . Virtus militaris populo Romano nomen , vrbi aeternam gloriam peperit , orbem terrarum parere huic imperio coegit . nor that of Lactantius accusing the Romaines of vniustice in these wordes : Howe much profit , differeth from iustice , the people of Rome doe testifie , who proclaiming warre by their Heraulds , and doing ini●rie in forme of lawe , and alway desiring other mens goods , & altering the property by violence , haue atchieued to themselues the possession of the whole world : Lactant . lib . 4. institution c 9. Quantum a iustitia recedat vtilitas . populus ipse Romanus docet , qui per faeciales bella indicendo , & legitime iuiurias Inferendo , semperque aliena cupiendo & rapiendo possessionem sibi totius orbis occupauit . nor that of Liuie who is directly opposite to Lactantius . The gods ( saith he ) fauour religion and loyaltie , by which the Romanes ascended to such an height of estate : Liuius . lib . 42. Fauent pietati fideique Dij , per quae populus Romanus ad tantum fastigij venerit . nor that of Dio vttered in person of Caesar : Our auncestors did make our Citie so great as now it is , by hazarding and exposing to daunger their owne wealth as if it had beene other mens goodes , but other Princes Dominions as belonging vnto them they did not doubt to seise : Dio lib . 38. Maiores nostri tantam vrbem nostram fecerunt , cum suas fortunas tanquam alienam possessionem semper periculis obiecerunt , aliorum autem ditionem tanquam pertinentem ad se haud cunctanter suam facerent . nor that of Orosius : The citie of Rome like an vnsatiable belly did deuoure all , and yet was alwaies hungry : For into her bosome all the wealth and treasure of other nations robbed and spoiled by the Romaines was conueied and transported : O osius lib . lib . 5. c . 18. Quasi inexplebilis venter Roma cuncta consumens , & semper esuriens , cum in sinus ipsius euersarum omnium vrbium , nudaturumque terrarum abrasae vndique opes cogerentur . whereupon he further exclaymeth . Looke how happily she ouercommeth , so vnhappily other nations are vanquished , and ouercommed : the happines of this Citie is the vnhapines of the whole world : O vnhappy world vnder this conquerour , a subtile vnderminer , a bitter enemie , a blody tyrant : Quam vincit illa foeliciter tam infoeliciter quidquid extra est , vincitur : faelicitas vrbis infoelicitas orbis : infoelicem sub isto victore orbem , arguto insidiatore , hoste infesto , domin . immiti Orosius li. 5. c . 1. & li. 6 c 12 though Arnobius a man of great sanctimony do in like sort surmise that this onely City was bred for the destruction of all mankind : Ciuitatem vnam in humani generis pernitiem natam . Arnob . adu . gen . neither do I like Claudian his strange and paradoxical opinion , auouching patience to be the cause of the Romans prosperity . Rome ( saith he ) neuer sunke vnder the burden of mishape , and no wound dismaied it : after the great slaughter of Cannae and the dangerous war of Trebia , she did more lift vp her head , & when flames of war did one each side besiege her , and the enemies ramme menaced the wal , she sent her army into the farthest & most remote parts of Spain : Nunquam succubuit damnis , & territa nullo : Vulnere post Cannas maior Trebiamque fremebat , Et cum iam {pre}merent flammae murūque feriret , Hostis , in extrem . aciem mittebat Iberos . Claudi 5. st●●ic . neither do I agree to Florus & Ammianus both agreeing in opinion . The people of Rome ( saieth Florius ) was tossed by many labours & dangers , so that vertue and fortune might seeme to haue contended for the procuring of her soueraignty : Populus Romanus laboribus periculisque iactatus est , vt ad constituendum eius inperium contendisse virtus & fortuna viderentur Flor . in proaem . histor : to whom Ammianus subscribeth , saying : vertue & fortune did herein iumpe for the most part iarring : but the aforesaid Claudian being at another time better aduised , Ar●mian . lib . 14. doth verie fully & truly describe the causes of the Romane prosperity . Rome was the mother of military disciplin and lawes , & ( by these meanes ) dilated and stretched her principality ouer all countries , & prescribed vnto thē their first laws & orders : Armorum legūque parens quae ●undit in omnes Imperium , primique dedit cunabula iuris . Claudi . 3. stili● . for the good gouernment of their common-weale at home , Virtus hic conuenit & fortuna , plerumque dissidentes . did make their warres to prosper abroade , and the giuing of lawes to others , made others at peace with them , and to beare the yoake of more inclinable obedience : and they which so obey , finde more good by the direction of lawes , Quo arma vestra peruenerunt codem , ius vestrum hinc profectum perueniat . then the protection of armes . Wherefore the Rhodians did very wisely make suite to the Romanes for their Lawes , rather then for their garisons . Whither your weapons haue pearced , Liuius li. 37. there let your laws arriue , but more fit to iudge of these matters , then any aboue mentioned is Polibeus , a man highly commended by a learned ciuilian ; Alberi Gentil . li de arm . Rom. 2. c . 13. as a good soldier experienced in warlike affaires , Bonus qui rebus interfuit miles . as a good Captain in the regiment of souldiers , Bonus qui rebus praefuit ductor . as a good Iudge in the controuersies of great Princes : Bonus qui summis imperatoribus adfuit arbiter . his opinion of the cause of the Romane glory is thus . Fortune onely ( saith he ) did not purchase to the Romanes the vniuersall Empire of the world , but vertue and discipline ( he meaneth I doubt not , the discipline of religion , of armes , and of law ) being all of them fit instruments for such an effect : Polyb . li . 1. Non fortuna Romanis vniuersale imperium peperie : sed virtus , disciplina apta , ad tantam rem omnia . and the law is prophesied by Anchises that graue Troyan to be the very ground and occasion of the Romane felicitie : for thus he saieth to Aeneas . Regard thou ( O Romane ) to gouerne Nations by iust commaunde : these shall bee thy artes , to be mercifull to the meeke , and sterne to the proude , and to prescribe order to peace : Virgil lib . Aencid . 6. Tu regere imperio populos Romane memen●o . ( He tibi erunt artes ) pacique imponere morem , Parcere subiectis ; & debellare superbos . and Hannoes speech in the Senate house of Carthage was , that the best education of young men was to bee brought vppe in the obedience of Lawes : hee speaketh thus of Hanniball . I thinke it most fit , to schole and trayne vppe this younge man , vnder Lawes and Magistrates , and that hee should bee taught to liue in iust manner amongest others , leaste from this little sparke a greate scare-fire doe growe : Ego istum inuenem sub legibus , sub magistratibus docendum viuere equo iure cum caeteris censeo , ne quandoque paruus hic ignis incendium ingens exsuscitet . Liuius lib . 21. and as lawes haue supported and vpheld euery estate into which they were entertained , so the decay of them hath beene the desolation and downefall of all estates : and the common-weale of Rome ( if euer any ) hath tasted the lamentable bitter , and wonderfull experiment hereof . For Ciero in the person of Scipio , that excellent man , doth euidently & amply according to his manner describe the ruine and declining of the Romane glory . Scipio is of opinion that the commonweale cannot be gouerned without great iustice , and that as in musicall instruments , a consent or harmonie is made of distinct sounds , which being chaunged & distuned , the eares are offended with an vnplesant iarring : so of the principall meane , and inferiour sorts of men agreeing amongest themselues , the good estate of a Citie doth grow , and that which in musticke is called harmony , in a common-weale is tearmed concord , which can neuer be without iustice : but when iustice was obscured & suppressed in the Romane common-weale , there was not then a vicious common-weale , but which was a great deale worse then that there was no common-weale at all , but apparant disorder , and confusion . Cicer . in Laelio . And this was well perceiued by that ancient writer Ennius , for he bewailing the great alteration and decay of the Roman common-weale , doth withall disclose the cause of that straunge accident : alas whether is the power and strength of Italie vanished : into what a slender shadow are we shrunke : the state of Rome cannot stand without the ancient manners , and magistrates : Heu mihi quo latiae vires vrbisque potestas Decidit : in quas●paulatim fluximus vmbram : Moribus antiquis stat res Romana vi●●sque . Fragm . E●●● . for these ancient manners which he affirmeth to be wholly preserued and retained by the iust gouernment of Magistrates , Cicero auocheth by way of comment vpon Ennius his speech to bee good lawes and customes . Before our memorie ( saith he ) our auncestors by custome did preferre excellent men to the Magistracie , and themselues being worthie men , did obserue the auncient customes and the lawes of our forefathers , Fragm . 5. lib . Ciceron . de repub . Ante nostram memoriam & mos ipse patrius praestantes viros adhibeat , & veterum more ac maiorum in stituta retinebant excellentes viri . and Saint Augustine a better Iudge then any that spoke yet , layeth all the fault & blame of the miserable & wretched estate of the Romanes vpon the breach and contempt of lawes . For ( saith Augustine ) the noble and vn-noble were put to death , not by laws & iudgement of Magistrates , but by quarrels and malice of minde . D Augustinus li de ciuit . dei 3 c . 24. Neque enim ligibus & ordine potestatum , sed turbis animorumq , conflictibus , nobiles ignobilesque necabantur .

This may suffice to conclude and conuince my former assertions , that no Common-weale canne flourish without lawes , and if they bee once receiued and approoued , and afterward altered , defaced , and trode vnder foote , such contempt and carelesse neglect of lawes procureth the sodaine and finall myserie , calamitie , and distreputation of that Common-weale . Nowe heare mee a little proouing likewise vnto you the antiquity and long continuance of these three lawes ( whereof the Dialogues ensuing doe beare plentifull discourse ) for the good administration and regiment of all Common-weales .

The Cannon lawe is more auncient , then the other twaine , and of greater continuance . For amongst the ancient Egiptians priests were iudges . Elianus lib . 14. vari Hist . c . 54. The Druidae the priestes of the auncient Galles , did iudge of all controuersies , aswell priuate as publike , and for offences they did ordaine and inflict punishment , and if any man did not obey their decree , they did interdict him their sacrifices , which was the greatest punishment amongst them : for all other did auoide the speech and company of such persons as a contagious euill : Iuli . Caes . li 6. com . Numa Pompilius the second King of the Romans instituted a high Priesthood , with an inferiour order , and hee gaue them power to make lawes concerning spirituall things , without the controle or countermand of any , and as a parcel and member of religious matters , they had in charge the administration of poore mens causes , and of all such matters which in the Ciuill law are called piae causae . Plinius secun lib de vi●●s illustri c . 3. Eutropi . lib 1. lustor . Dionis . Halicarnal . lib . 2. L●●i li Fene . li de sacerdot . Rom. Plin li. 13. c . 13. Cicer . pro dō sua & de ar●spec . re●pon But what need heathen examples , when the Common-weale of Iudaea , that is Gods owne Common-weale doth afford plentifull example & authority herein . Heli and Samuel the priests of God did gouerne amongst the people of Israel . 1. Reg c 1.1 . Reg c 7 & 8. And so God hath expressely commanded : My priests shal teach my people , what difference there is betwixt cleane , and vncleane , and they shall iudge my laws and my precepts . Ezech . c . 44. And in another place : Aaron , and the priests shall iudge betwixt leprosie and leprosie . Leuit. 13. Iosaphat the King of Iuda , when he did appoint Iudges in all the Cities of Iuda , he did appoint also in Ierusalem Leuites & Priestes , that they might adiudge iustice , and the cause of the Lord vnto the inhabitants , & he appointed them to iudge of euery cause of their brethren which was betwixt kinred & kinred , whensoeuer question should be of lawe , of commaundement , of ceremonies , of iustifications ; and he appointed Amasias the high Priest in those things , which belong to God : Paralipom . 2. c . 19. afterward the high Priest Iesus Christ did giue diuine laws & rules vnto his people : Epistol ad Hebr . c . 3.4.5.8.9 . after him his Apostles , Actor . 15.2 . ad Thessalo , 2. then Bishops and Prelates in their dioces , De potest summ pontif . in Canon cun●ta {per} mundum 9 questi . 3. their power , their Cannons , their lawes were approued by diuers Emperors and Kings , Philip , Valentinian , Marcus , Iustinian , Constantine the great , Honorius , and Theodosius , L. cum l. 4. de sacros . eccles . li . 1. C. Tit . 5 priuileg . quae general . l. 12 , eod . Tit . § 1. in eccle . Tit . in authent . collat . 9. Tit . 6. Rufin . li . 10. hist . eccl , c 1. and many others : And by king Henry the eight of famous memory late King of England in his Parliament held the 25. yeare of his most prosperous raigne , and reuiued in the first yeare of our renowned Queene and Soueraign Lady Elizabeth . 25. H. 8. c . 19. 1. Eli . c . 1. As to the originall of the ciuill law I doe not thinke , that , that which may properly bee called ciuill lawe , and was so called at the first , is any other then ius Romanum , or ius antiquum Romanorum , or that which hath beene commented thereupon , or added thereunto . It is manifest that Romulus did establish lawes , Dionys . Halicarn . li . 3. and so did the other kings that followed him : and that the law was brought into a conuenient form in these times , it is very apparant by this , that M. Tullius being one of the decemuirs was thrust into a sacke , and by Tarquin his commandment was cast into the sea , because , corrupted by lucre , and reward , he did suffer the booke containing the secrets of the sacred lawes of their citie , to be coppied and written out by Petronius a Sabine : Valer . Maxim . li . 1. c . 1. & P. Papyrius is said to haue brought all the regal laws into one volume : Valer . Maxim . li . 2. in princip . Et § iur . eiuil . de veter . iur . e●● cleat . and for the perfitting of the other lawes , the lawes of the 12. tables were giuen forth by the decem-viri : L. 1. § exactis de origin . iur . Diodor . Sicul . 12. Dionis . Halicarnas . li . ● . & 10. which excellent lawes if they were well , and at large explaned , would giue such light and intelligence to the makers of lawes , that nothing in my simple coniecture ) more commodious could euer happen in any common-weale : these together with other constitutions made vpon principal occasion were obserued & retained as the leuel of the Romane gouernment , & wheras in the times of ciuil dissention they were repealed or discontinued , Augustus Caesar that admirable and worthie Emperor did reuiue the good lawes , and reformed the bad , and by the perfection of that Commonweale brought about by him , the circle of the whole world as resting vpon that center became presently and vniuersally peaceable and quiet : Veller . Pater . c . li. 2. histor . but the Emperours succeeding him hauing more care to be great , thē to be good , made smal reckoning of these laws , but by voluntary conceit commanding , & forbidding , they rather raged thē raigned , & the decrees of some of thē , namely Tiberias , Caligula , & Commodus are wittily termed of the lerned ciuiliā , furores non iudicia Alber . Gentil . li . lecti . Et Epi . 3. c . 18. but these laws in the times of Archadius , Thodosius , & Iustiniā , recouered their strength , & shining to al the common weals of Europ , as the Sun to al the climats of the earth , haue for their worthines , & necassary vse & imploiment receiued intertainment , countenance & great reward of Emperors , Kings , & Princes .

The law of this realme hath , as the realme it selfe , suffered chaunge by conquest : yet as far as I can perceiue by record of auncient times , rather reason than soueraigntie , and consent rather then commaund , was the principall agent in the alteration . Our greatest law-makers in former times were Ina , Alured , Guthran , Edward , Ethelstane , Edmund , Edgar , Ethelred , Canutus : after their raignes ended , and their lawes established ; K. Edward the confessor ( after his inauguration in the throne of England ) finding in the garden of the Common-weale , some lawes like to weeds , others like to flowers ; as a diligent Bee he extracted a good iuice out of the better laws , and the worser by him neglected , by difusing withered King William the Conquerour hauing wholly subdued this realme , perceiuing that his subiects did with great applause fauour the laws of King Edward : yet seeing in them somewhat which himselfe and others in politike consideration disliked , imitating the frugall houswife , who knoweth that the best hony cannot be good vntill it be clarified and refined , singled out twelue persons out of euery shire ( imitating perhaps the Romanes , who appointed decemuirs for the making of their laws : ) Men of approued skill & fidelity , who might by exploration seuer the dross from the gold , and the erronious lawes from the conuenient and commodious , Lambard . lib archaeon . adding therunto some customes of Normandy , Lib . des customes de Norman . whereof many , for the reasonablenes of thē , haue to this day continued . This lawe hath had duely increase , many of the olde lawes standing vnaltered , some of them by reason of some sinister effect or sequell happening by them , iustly chaunged , and others by reason of newe accidents , adioying vnto them : It hath florished long in this good estate , and of the continuance and prosperitie of it , three reasons in my shallow conceite may be rendred . First , because it so agreeth with the law , religion , and discipline of the holy , Catholike , and true Church of Christ , that there is nothing in it which to the Law of God is crosse or opposite . Secondly , because other nations with whom wee haue commerce , & entercourse , doe not find their commodities or liberties to be impeached by this Lawe . Thirdly , because they are rather popular , then peremptorie , rather accepted , then exacted , and rather embraced , then perswaded . And with this I conclude , leauing these lawes to your further and more considerate commendation .

Thine in all duetifull respect . William Fulbecke .

The Table of the seuerall Titles of the fifteene Dialogues ensuing . 1 Of Contracts . Fol. 1. a. 2 Of Gifts and Graunts . Fol. 7. b . 3 Of Bargaines and Sales . Fol. 11. b . 4 Of Seigniories and Seruices . Fol. 17. b . 5 Of Iointenancy & tenancy in common . Fol. 28. b 6 Of Exchanges . Fol. 32. a. 7 Of Deuises ; and Legacies . Fol. 34. b 8 Of Borrowing and Lending . Fol. 50. b . 9 Of the Bailement or deliuery of goods and chattels . Fol. 54. b . 10 Of the forme and manner of ordinary proceedings in matters of law . Fol. 57. b 11 Of common Wrongs and Trespasses . Fol. 78. a 12 Of vnlawfull Assemblies , Riots , Routs , and forcible Entries . Fol. 82. a. 13 Of Treason and Rebellion . Fol. 84. b . 14 Of Homicide that is murder , manslaughter & Homicide by chance or misfortune . Fol. 89. b . 15 Of Theft , Burglary , and Robbery . Fol. 101. a.

The Introduction to the Dialogues .

A Gentleman by name Nomomathes , with the riches , fortunes & reuenewes of this world very plentifully furnished , being liberally minded , and willing that his fountains should flow forth to the benefit of others , Prouerb . 5. vers . 16. being a great fauorer of learning , & desirous by all means to increase & aduance it , mainteined & kept with him continually in his house 3. learned men , & greatly addicted to the studies of the laws ; one of thē named Canonologus a Canonist , the other Codicgnostes a doctor of the ciuil law , and the third Anglonomophylax a Barrister , and professor of the common law of this realm of England : of them he made great accompt , & of their learning aboue all humane sciences , as being most fit & pertinent to the guiding & administration of publike affaires : and as the famous Cofimus , Medices , and Laurentius his nephew Machia . lib . 7. & 8. Flor . hist . , did harbour in their houses at seuerall times , & with many benefits pleasured the two excellent men and stars of learning Marsilius Facinus , and Iohannes Picus Miràndula , being in their houses the nurseries of good learning , as two faire flowers in their natural root & as Cato Plut. in Cat . the Vtican a long time before the family of Medices was known in Florence , or Florence was knowne by the name , had continually in his company 3. worthy philosophers Apollonides the Stoike , Demetrius the Peripatetike , & Cleanthes a cunning Phisitian , many times conferring with thē , alwaies profiting by them : so this gentleman of whom I speak , reaping much good and benefite by the persons abouesaid did vse them exceeding kindly , & many times proposed diuerse questions of the law vnto them , wherein he had good resolution ; and hauing sequestred himselfe from the multitude of priuate affaires , wherwith he was often molested , hauing attained to a conuenient dispatch & conclusion of them , hee allotted certaine times of purpose for the hearing of matters of law handled and debated : and sometime in his parlor , and chamber , sometime in his garden , and gallery , he would giue diligent eare & attendance to such disputation & discourse , hauing set downe certain rules , & as it were , a good platforme of the exercise . The rules were but 2. in number , which were great in weight . 1. He willed thē to exclude all caiuillng , to yeeld vnto the better reason , and with ioint indeuor to search out the truth of euery matter proposed : for he said that nimiùm altercando amittitur veritas . 2. Hee would not ( sithence comparisons wer of al things most saucy and malepert ) that they should enter into any disdainful comparison of the lawes which they professed , but should rather vse them as brethren , then as enemies , & should reuerence the greatnes of knowledge , where they found it , & pardon the weaknes when they had discouered it , without bitternesse of tongue or venom of heart , assuring themselues that the meanest of these lawes might in some particular things profite the greatest of these Lawyers : for as he obserued the sayings & doings of Cato in stead of a Law , so one of Catoes sententious and iudicious oracles he had alwaies in his mouth . Alienā artem temerè ne contemnito : hauing by these rules as by limits bounded the order & maner of their conference , he proposed certain things distinctly , & in order to be discussed , which were thus by him marshalled . Because in raunge of all humane affaires subiect to the contemplation of law , contracts haue from ancient time bin the ground of vesting & altering the property of things , hee would therfore first haue thē to begin with a discourse of contracts : & because there be two things following after contracts concluded much in vse , namely , 1. a gift or graunt ; 2. a bargain or sale , he would therefore of these two haue thē diligently to argue : & because gifts haue bin often made to raise & create a tenure , his desire was that in the 4. place they should discourse of Seignories and seruices : & for that grants or gifts be made sometime ioyntly , or by moities , he would haue them to speake somewhat of ioyntenants , or tenants in common : and because they that haue things by gift & grant doe often exchange them , his minde was they should handle the nature & manner of exchanges , and sithence the last disposing of all worldly things is by the last will & testament of the party , he therfore requested them to be painfull herein : after as touching the conueiances of lands , which be in the realty he would haue them to proceed to personal things , as namely to treat of borrowing and lending , and of the bailement or deliuery of goods and chattels : because such things were much in vse . And because these and the precedent matters were many times occasions of action , therefore he thought it conuenient that they should speake somewhat of the forme and maner of ordinary proceeding in matters of law , and when they had finished this taske abouesaid , hee prayed them to discourse of penall and criminall matters , of common trespasses and wrongs , and other offences against the peace , the order of which hee would hereafter set downe . The method of their conference being thus digested , and respit of studie and deliberation being giuen , Nomomathes thus spake to Codicgnostes .

The first Dialogue . Of Contracts . NOmomathes .

I pray you Codicgnostes let me know whether any persons are by law prohibited to make any contract : deliuer your knowledge herein , and let your companions speake to this point , and others that I shall propose , when and as far forth as shall seeme good vnto them .

Codicg .

The chiefe ground of contracts is consent , L. 1. ff . de pactis . & in c . Antig . Eo Tit . de pact . & I. consens . ff . de action . & oblig . I. 1. ff . manda . Et I. ficut C. de actio . & obli . so that the persons which contract must be able to consent , 1. The ground o● contracts . & consent groweth of knowledge and from a mans free will , directly by sufficient vnderstanding for he that knoweth not what hee doth , 2. T●e contracts of infants , persons d●stracted of their wits , and religious persons , whe her or how far fo●th they be good . cannot be said to bee wiiling to do a thing : as a man that is distract of his wits : or an infant that is within yeares of discretion , l. 5. ff . ad . leg . Falcid . l. 12. de leg . and the contract or couenant of such persons is not ratified by oath , which by law are forbidden to contract , l. non dub●●● C. de legib . as Monkes and Friers and such like religious persons .

Canonologus .

Indeed such persons are said in our law to be mortui mundo , dead to the world , 16. q . vltim . c . fi . and they cannot liue without their Cloister no more then a fish without the water , 16. q . 1. plac . and he can haue nothing priuate or proper to himselfe , and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio , De sta . mo . c . 2. & C. ad monaster . Ca . 1. & 2. de postula . 16. q . 1. monach . &c. religious . de procur . in cler . and he cannot be any mans aduocate in a cause , or any many proxie without the consent of his Abbot or Soueraign , and that must be to the vse and behoofe of his monasterie , and the like law is of Friers . Cle . dud . de sepul . & Cle . exiti de parad . de verbo fig

Nomomathes .

But is there no difference in the Lawe , betwixt the contracts of infants and the contracts of Monkes and Friers ?

Codign .

Yes verie great : 3. Monks are absolute● {pro}hibited by the Ciuill ●aw to make any contract : infants are disabled with a certaine qualification . For Monkes and Friers are prohibited by law to make any contract , so that as I haue abouesaid , their contract cannot be good , though it be confirmed by oath : But infan are not iure prohibiti , but inhabiles ex iuris dispositione , and therefore their contracts may by oath be established . Authent . sacramenta puberum cum tota sua materia . C. fi aduer . vendit & in corpore vnde sumitur .

Anglonomop .

As the former Lawes haue verie greatly disabled Monkes and religious persons , who are tyed to a certaine rule : so our Law hath verie much diminished their abilitie , as to their intermedling in secular matters . In a Scire facias brought by a Prior against a parson out of a recouerie had against his predecessor , 4 That by the Common law Priors vnder the obedience of a Soueraign , & which were datife and remouable , cold not implead or be impleaded without the 1 soueraigne , vnlesse it were by special custom . it was held that the defendant should not be estopped by the admittance of his predecessour in the first action , to pleade in this Scire facias that the Priour was a Monke professed vnder the obedience &c. and was datife & remoueable , 4. H. 6. 2. for though it haue beene held that a Priour perpetuall may prescribe to implead and to be impleaded without his Soueraigne , yet by common intent a Priour datife and remoueable at the will of the partie shall haue no action by such vsage , but if he will haue any plea he must shew some special matter , 39. E. 3. 44. and it hath been said that the knights of S. Iohn of Ierusalem had their possessions seuerall , 5. The same Law was of the knights of S Iohn of Ierusalem . yet they could not vse an Action without their Priour , 32. H. 6. 5. & 31. and a Priour which was presentable , and had Couent and Common seale , could not before the dissolution of Abbeys and Priories charge his house in perpetuum , without the assent of the Patron and Ordinarie , neither could hee haue the Writte De aduocatione decimarum , nor a iuris vtrum , 12. H. 4. Stath . Tit . Charge . and a writ was abated being brought against a Prioresse , because the Prior of S. Iohns was commaunder of the house whereof shee was Prioresse , and because she was made Prioresse by him , and was vnder his obedience , and remoueable at his will , notwithstanding that shee had Couent and Common seale and had her possessions seuerall , and was wonte to Lease the lande for tearme of yeares , 12. R. 2. Nonabilitie 4. and if a contract bee made with an Abbotte and his Monke , the Writ that hath beene grounded vpon this contract hath been brought against the Abbot onely , 33. E. 3. Br̄e 913. 2. H. 4. 21. and so hath a writ of Detinue beene brought being conceiued vpon a deliuery of goods made to the Monke to the vse of the Abbot , Ibidem . yet it hath beene thought that an action will lie against a Monke , if hee bee not in subiection to some soueraigne . 14. H. 4. 37. But it hath been taken for a generall learning with vs that Monks and ●riers , & Canons professed & the like , could not grant any thing , 14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31. neither could they be grantees of any thing , 5 H 7. ●5 . 19 H. 6. ●5 . neither are they capable by way of deuise , Perk . ●it Deuis . sect 537 & the couent of an Abbey or Priorie can yeeld so little aduantage to the house in matter of purchase , that if in former times land had beene giuen to an Abbot and to his couent , this could not be good saue onely during the life of the Abbot for the want of this word ( successors ) 11 H. 4. 84. {per} Curi . but touching the abilitie of infants in contractes and purchases the Lawe is diuers according to the diuersitie of cases , and if an infant do buy of any a coate or necessary vestment for certaine summe , or if he make a couenant for his meate paying 12. d . a weeke according to M. Paston his opinion , this couenant is void , 6. The infant contract for his meate apparell , and necessaries is good , if he be of the age of fourteen years yea and if he make a bonde for it , the bonde likewise is void : but Markeham thinketh the contrarie if the infant that is so bound be of the age of fourteen yeares , 21. H. 6. 31. 18. E. 4. 2. Perk Grau . 4. D. 5. diar . 2. fo . 113. and by M. Brookes opinion this is the better Law , Br. Labourers 30. and if an infant lease land for terme of yeares rendring a rent , 7. That which an infant doth witho●t actual ●●crie may bee au ●ded by act●on without en●re or ●e●sure b●t tha which he do●h ●y actual liuery cannot be auoid●d without en●re or sei●●re . or doe sell a horse or any other thing he may chose to haue an action of Dette for the rent reserued vpon the Lease , or a Writte of Trespasse for the occupation of the Land , and so he may haue an action of trespasse for the occupation of a thing sold by him : and if an infant doe giue to one a horse without actuall deliuerie of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gift , the infant may hauean Action of Trespasse against him , 18. E. 4. 2. and if an infant make an obligation or lease in writing and inseale it , and deliuer it to a straunger as a scrowle to deliuer to him to whom it is made when the infant commeth to full age as his deede , and the straunger doth it , this is voide , because it is done by a commaundement , which is void , 27. H. 7. 6. for the commandement or assent of an infant is void in law , 11. Ass. pl. 14. so that a difference is to bee held , where an infant passeth away a thing to another by liuerie in facto and where not : for in the one case the gift or conueyance is voidable onely , in the other it is void to all intents . For if an infant make a lease for terme of yeares , or a lease by dures , if the lessee enter , the infant may haue an assise , but if the infant make a feoffement and deliuer seisin accordingly , hee shall haue no assise , for by the liuerie of seisin the feoffee had a possession at will at the least : but if ●ee make a letter of Attorney to deliuer seisin hee may haue an assise , 9. H. 7. 24. & 2. Mar. 109. Dyer . Rug . but where any man doth a thing which is for the profite of an infant hee shall not bee punished as a trespasser , as if an infant commaunde one to repaire his houses and he doth it , this shall excuse him in an action of trespas . 13. H. 7. 17. {per} Kebl .

Nomomathes ,

You haue spoken sufficiently

Anglonomop .

of religious persons and infants , and of contracts made by them now I pray you shew vnto me whether the contract of the seruant shall bee accompted in law the contract of the master . ● . whether th● contract of the ●eruā● sh●ll he ac●omp●ed in law ●he contract of the masthr .

Anglonomop .

It hath beene held in our bookes that if a man haue a Bailife or Seruant who is knowne for his seruant , 1 That ac●ending to the common Law the m●ster shal be bound by t●● contract of a knowne seruant , i● the thingi Merchanddsed do come to his vse : and he shall be bound by the contract of his factor ●hough the goods neuer come to his pessission if hee sende him to Fayres or Markets , to buy , to sell , or to doe other things markettable , his Master shall bee charged with the paiment , if the thing which is Merchandized doe come to his vse , 2. R. 2. Dette 3. {per} Curi . and it hath beene likewise held that if a man sende his boy to the Market to buy thinges for him , and hee buyeth them , and bringeth them to him , and the vendor bringeth an action against the Maister , and auerreth that the goodes came to his vse , hee shall recouer against him in the action , 4. E. 2. 16 r . and Pigot his opinion is that if one make another man his Factor to buy thinges for him , if hee buy Marchandize of any , the Maister shal be charged by this contract though the goods neuer came to his possession , because hee hath giuen vnto him such a power , 8. E. 4. 1. & 9. Dutches de Suffolks case , per Pigot . But in the eighteenth yeare of King Edwarde the second a man was bound in a Recognisance to S. to pay at a certaine day , at which day the Reconusor came and profered the money in Court , 3. The act of a mans Attorney or his generall receiuer doth not bind the master without special warrant . and because S. was in the Kings seruice there came one A. as his generall Attourney , and said that he was readie to receiue the money , and shewed forth to the Court a Warrant of Attourney , but because the Warrant of Attourney was that hee should be his Attourney In placitis & quaerelis ad lucrandum & perdendum , and the Recognisance was a thing alreadie adiudged and determined , and therefore could neither bee plea nor quarrell . therefore it was thought that his Warrant did not extend to receiue money , 18. E. 2. Execut 245. so in an action of Dette brought vpon an Obligation the defendant did confesse the deed , and said that hee had paied the summe to one C. the generall receiuour of the plaintife , and hee had thereof an Acquittaunce which hee shewed foorth to the Court , but because hee had acknowledged the Obligation , and had shewed no Warrant of the plaintife , to paie the sayed money to C. so that the acquittance which was shewed , could not bee the deede of the plaintife , The Court awarded that the plaintife should recouer his debt and his dammages , 5. E. 3. 63. but as to a mans seruant I take the Law to bee that his contract shall extend to his Maister , as well for preiudice as aduauntage , And therefore if a mans seruant sell to one certaine clothe , and warrant it to bee of a certaine length the Action will lye against the Maister onely , and not against the seruant , and if A. do assume to cure B. of a wound and hee sendeth his seruant to B. to lay medicines to the wound , whereby hee is hurte and empayred , B. cannot haue his Action vpon the case aginst the Seruaunt but against the Maister , 11. 4. 6. Choke & Brian and of late-time the Lord North being Chauncellour of the Augmentation Courte , deliuered an Obligtion made to Queene Marie to his Seruaunt to deliuer ouer to the Clarke of the Augmentations , the Obligee and the Seruaunt did conspire and cancell the Obligation , the Maister was held in this case to bee chargeable . 5. Mari . 16. 1. Dyer per Iustitiar̄ .

Nomomath .

You haue satisfied me touching contracts made by a mans Seruaunt , now I pray you shew mee whether a contract made by the wife in the behalfe of the husband will binde 1. Whether the wises contract made in the behalfe of the husb●nd , will bind the husband . the husband .

Anglonomoph .

In an action of debt brought against husband and wife , and another , vpon a contract made during the couerture , 2 That by the common Law an action of ditte b ought vpon a co●ra made by the w●fe f●●●he b●ho ●e●uly against ●he husband without naming the wife . for the woman it was said , that a feme couert cannot make a contract , wherefore iudgement was demsunded of the action , and the husband and the third person pleaded the same matter to the Writ , and they could not be admitted to plead to the Writte , because the woman had pleaded to the action : but they pleaded the matter abouesaide in barre of the action , and weare receiued , 34. E. 3. Briefe 923. and if the husband and the wife doe borrow money , this shall bee accompted the borrowing of the husband onely , 33. E. 3. Briefe 913. and if a mans wife doe buy goods of one to the vse of hir husband , the wife is not in such case to be named in the Writ , that is to be brought hereupon . 2. H. 4.21 . {per} Markeham .

Codicgn .

By our Law , 3 Th●t by the Ciui● Law the husband is in no foyt to ●e ch●rged by the co●tract of his wife . no mans contract made in the behalfe of another , will bind the other , but such a persons contract who may bee bound for the other , ff . C. & ff . de pact . n congr . Tit . t

Nomom .

You haue shewed vnto mee aboundantly , how contracts may stand good , and how they may be infringed by reason of the persons - which are parties or agents in the stipulation or contract and efficient causes thereof , by reason of their abilitie or disability possitiuely set down in Law , now I would haue you proceed to declare how by the materiall causes of contracts , they may stand or fall .

Codicgn .

A contract hath a materiall substance whereof it is made , 1. How contracts may stand or fall by their materiall ca●ies , o● the defect of them . as well as other things , and the materiall cause of a contract is the thing for which wee doe contract : for as in mechanicall and artificiall things there is required some apt matter , D. L. adeo §. cum quid . whereof a thing may be wrought , so in contracts and couenants as well these which are determinable by the Law of Nations , as these which are sentenced by the Ciuil Law and other Laws , to the end they may be well perfited and concluded , some materiall cause is requisite . ff . de verb . oblig . l. intrr Stipulant{ur} §. sacrament{ur} de praescriq̄ verb . l. insula .

Nomum .

Why , are any contracts ordered by the Law of Nations ? 1 Some contracts a co●d●red by the law of nations .

Codicgn .

Yea , for by that Law an Embassador may be impleaded for such contracts as he maketh during the time of his Embassage , 2. An Embassador may acc rding to the Ciuill Law bee impleaded by the Law of nations for a contra● made whilst he is Embassador . left ( as Iulianus saith ) hee presume to take other mens goods with him into his owne countrey , L. 25 D. de iud. or ( as Paulus reasoneth plainely and pithily ) least men fearing to contract with them , if they be not in this regard subiect to Law , they bee excluded from all commerce and entercourse of bargain : L. 24. de min. l. 11. ad Vell l. 12. de and this Law is supported by that excellent rule of equitie , that no man ought to growe richer by another mans losse , and if one that is no Embassador doe contract with one , and after bee made an Embassador , yet he is now chargeable with the contract . Likewise an action will lye against an Embassador by the Law of Nations if hee couenant to performe a thing when hee is Embassador , if it so fall out that the charge and credit of Embassage be committed vnto him , L. 3. D. de lega . African . L. 2. p. 1. de iud .

Nomom .

I am verie desirous to know Codicgnostes whether contracts made with Pyrats and with robbers by the high way are auaileable and of force by the Ciuill law , or the law of Nations : 1. whether contrancts made with Pyrats or robbers in the highway be good in Law

Codign .

I doe not thinke that pyrats and robbers are to haue aduantage by any Law in matter of contract , because they haue cast aside all care of humane societie , and seeke to reduce the world as much as lieth in their power , to the pristinate wildenes and sauagenesse of nature , when men did liue like beasts , and as Lucretius saith Lucret . li . 5. , Quod praedae obtulerat fortuna cuique , ferehat Sp●nte sua sibi quisque valere & viuere doctos . And such persons may not inioy the benefite of Law to which they are enemies , Paul . l. 63. ad leg . Falc . To such men which haue withdrawne themselues from the communion and societie of men , 2 that Pyrats and robbers are not to haue aduantage of law in matters of contract . and ( as Flor . lib . 3. Florus saith ( haue brooken the league of mankind , why should the Law of Nations , which is nothing else but the communion and league of Nations , extend any fauour . Pyrats ( as Plinie sayth ) are enemies to all men liuing Plin lib . 2. cap . 49. and therefore Cicero auoucheth , that if thou doest not bring to robbers of Pyrates , the raunsome which thou hast promised for thy life , there is neither offence nor fraudulent dealing in thee , no though thou hast promised with an oath Cicer . pro leg . Manil . & 3. de offic . . Therefore some doe wonder that D. Hotoman dare affirme Hotom . 7. Illust . question , that the Law of Nations doeth extend to fugitiues and robbers , and his chiefe reason is , 3 that D. Hotoman erreth g●eatly●i maintayning that Pyrats & robbers may lawfully con - because there is no Lawe which doth interdict and forbid to couenant or contract with them , and such things in his opinion , as are not verbally forbidden , are implicatiuely permitted . This reason is of no validitie ; for it may be implicatiuely forbidden , & in that they may be enemies to all men , and do spare no man , they ought not to protect themselues by the Law of Nations , which is the Law of all men : The question is not what may be done vnto them , or how many men hath dealt with them ; but how by the rule of equitie and soundnesse of reason they ought to be dealt with . For to dispute of Law is to dispute of a publike bond whereby wee are bound and obliged , but we are not bound to such Lawlesse , disorderly , and incorrigible persons , by anie common respect of duetie .

Nomo .

I will not trouble you farther Codicgn . with more ample discourse of this mater , but wil rest well apaid with that which you haue already spoken . Now I long to hear somwhat of Aoglon . touching the materiall causes of contracts .

Anglonomo .

A consideration which is the proper materiall cause of a contract , 1 That by the common ●aw a confideration is the proper materiall ●a●se of a contract , & that it may be expressed or implied . may in the concluding of bargains be either exprest , or implide : x prest , as if I buy a Horse of you for xx . s . you may keepe the Horse till I haue paid you the money , 10. E 4.10 . & M. Choke is of opinion that if you buy of one a horse in Smithfield for a certain summe of money , and doe not pay him the mony presently , hee may sell the horse to anie other in continent , and you cannot haue any remedies a●ainst him ; for otherwise hee might bee compeled to keepe his horse for euer against his will 17. E. 4.1 . per Choke . For it is implyed in the bargaine that the vendee must pay the money incontinent , otherwise hee cannot haue the thing solde , but if the payment bee respited vnto a certaine day vpon the contract , this is good enough , so that the money be payed within the time perfixed , 21. H. 7. 6 and 28. H. 8. 2 That a contract is not good without money paid in hand o● a certaine day of payment limited . it is positiuely set downe for Law that a contracte is not good without present payment vnlesse a certain day of payment bee limitted , so that the one of them may haue an action of debt for the money , the other a Writ of Detinue for the wares : 28. H. 8. 3 Dyer . An implied consideration is when the Law it selfe doth intend and inforce a consideration , and therefore the Hoste of a common Inne may deteine a mans horse if he will not pay him for his horse meat : And so if a Tayler make a gowne for any man , he may deteine the gowne till he be payed for his labour . 5. E. 4. 2.

Nomomat .

Doth not the defect of forme in a eontract frustrate and defeate the contract ?

Codicgn .

Yes : 1 wh ther the defect of form doe destroy the contract . for as the substantiall forme in materiall things is necessarie to the essence and constitution of such thing : ff . ad extrib . l. iulian . s . & l. falfi . l. si . is qui . ● . quidem . so in contracts a certaine solemnitie and concurrence of circumstances is required for the perfiting of them , 2 Tha● sol●mpnitie and co●cur e●ce if cir u●sta●ces is req●i●ed in c n●ract● by the Ciuill law . as their naturall and proper forme : ff . de verb . obligat{ur} l. sciend & l. continuus in princip . Eo . l §. si quis ita . q and without such ceremoniousnesse the contract is of no forcē .

Anglonomo .

Our law likewise requireth forme eyther in pronouncing the wordes of the contract , or else in obseruing som other circumstances belonging to the contract . For the first , if a man promise to another xx . li. with his daughter in marriage , if he marrie the daughter and the money be not payd he shal not haue anie action of debt , or action vpon the case at the Common Law , 3. That matrimoniall Contracts , if there be no assumpsit in them , are to be decided by the Ecclesiasticall Law : if there be an assumpsit , by the common law . but he must sue for this money in the Spirituall Court . Fitz nat. br̄ 44. 2. 14. E. 4. 6. Reg . 46. & 48. 15 H. 3. Prohibition 22. 16. H. 3. Prohi . 24. For here is no good forme of contract : and ( as Master Bracton saith ) Matrimonium est principale , & eiusdem iuris , id est inrisdictionis esse debet accessorium . Bracton lib . 5. cap . 16. And therfore if a man by reason of Matrimonie or Testament doe acknowledge in a Spirituall Court that hee ought to pay to one a hundreth markes , or some other summe at a certaine day , if the money be not paied at the day accordingly , he may bee sued for this money in the Spiritual Court , & no prohibition lyeth , Fitz . nat. br̄ . 41. b . but if in the former case he had promised one x . li . if he would marrie his daughter , if he doe marrie his daughter and the other will not pay the money he may not sue him in the Spirituall Court for this money , but at the Common Law , Fitz . nat. br̄ 44. a. & 22. Ass. pla . 70. {per} Tho . & 1. H. 3. Prohibit . 22. for now it goeth in forme of contract , as for the other matter where forme is required in obseruing some other circumstance in the contract , that may appeare by this case : If a felon sel a Horse without couin in a Market ouert , this doth alter the property , and the verie proprietarie cannot haue restitution of the horse notwithstanding the Statute of 21. H. 8. cap . 11. but if he had sold him out of a Market ouert , the propertie had not bin altered . 33. H. 6. 5. 18. E 4. 24. 7. H. 7. 12. Crompt . Iust . de Peace 172.

Nomom .

I will trouble you no further in this matter , but will proceed to enquire somewhat touching Gifts and Graunts .

The second Dialogue of Gifts and Graunts . NOmomathes .

In handeling the learning of Gifts and Graunts , 1. What things may be giuen or granted . I thinke it most fit in the first place to bee enquired what things may be giuen or graunted : wherefore first I pray you satisfie me in this .

Codicgn .

A man may giue all such things as an other may receiue : l. in aedibus §. si . ff . Eo . Tit . for dare & accipere sunt correlatiua : 2 That all things that li● in commerce and may be rece ued may be giuen . and all such things may bee receiued which lie in commerce .

Nomom .

Then things consecrated and ecclesiastical may not be ●liened , because they lie not in contract .

Codicgn .

Things ecclesiasticall though they be not consecrate , 3 That things ecclesiastic●ll tho●gh they be not consecrate cannot regularly be g●anted . cannot regularly be giuen or granted Cap. 2. de donation . & Eod . Tit . de re . ecclesi . non alien . in antiquis 6. & Cle . & in c . sine except . cap . si quisquis 12. q . 2. & in l. Iubemus cum suis authen . C. de sacrosan . eccle . , and I did vse this word ( regularly ) because where such alienation may bring profit to the Church , it shall be of force In dict . iur . .

Anglonomo .

In our Law a Writ of Contra formam alienationis lieth where a man gaue lands or tenements to an Abbot or house of Religion before the Statute of Quia emptores terrarum , to hold of him in frankalmoigne , and after the Abbot with the Couent did alien the same land in fee to another ; 4 That if an Abbot alien land● giuen in franke almogne to his house , the donor might haue a Writ of Contra forman collationis . now hee that gaue this lande or his heire may sue this Writte of Contra formam collationis against the Abbot or his successor , but not against the tenant of the land , but when hee hath recouered the land , hee may sue a Scire facias against the tenaunt of the freehold Fitz . na . br . 210. f . and this Writ of Contra formam collationis lyeth not , though the Abbot doeth alien in fee , vnlesse the Abbot & the Couent doe alien in fee 19. E. 3. Contra formam collationis . 5. Fitz nat. br . 211. c . , and if an Abbot with the Couent doe alien an Aduowson in fee , at the next auoydance the foundor or his heire may present to the aduowson , because they cannot in such case sue a Contr formam collationis . 20. E. 3. Cóorm̄ coll . 6

Nomom .

Let me know I pray you how many kinds of Gifts there be .

Aoglonomoph .

1 The diuerse kinds of Gifts , som being free some compensatorie . They be of diuerse sorts : some are called free Gifts , which proceede meerely of a mans good will and beneuolence : others may be called Compensatorie , because they are giuen for some cause or consideration : Gifts or gra s of the first kind are such as I shall nowe recite out of our bookes . Frst , the Queene may graunt to one lande ex mero motu , 2 What is wrought by the Queenes grant ex me●o motu . and though her Highnesse doe rehearse some consideration in the patent of her graunt which is not true , as if the consideration bee , that whereas the grauntee hath done her Maiestie good seruice on the Sea , or beyond the Sea , or in her Maiesties warres , or in some other busines : though the consideration be meerely supposed and not true , and therefore no good consideration in Law , yet the words ex mero motu doe make the grant good 26. H 8. 1. per Fitz . , and whereas the Queene ex certa scientia , & mero motu doth confirme a graunt , supposing that a graunt was made before , where in truth there was no such thing , it is held that her highnes shall be concluded to say , that no such grant was made : otherwise it had beene if this word ( informamur ) had bin vsed in reciting the grant . 9. H. 7. 2. For if her highnesse grant anie thing vpon the false suggestion of the partie , this graunt is voide , 3 What is wrought by her Maiesties grant by words of Informamur . because she is deceiued in her graunt , 11. E. 4. 1. per Littlet{ur} . and wee haue a rule : Si suggestio non sit vera , literae patentes sunt vacuae . 3. H. 7. 6. For when the graunt is made vpon the suggestion of the partie , the words of the graunt shall bee taken strictly , but when it is ex mero motu it must be construed and interpreted according to the Kings intent , and as fauorably for the grauntee as reason will permit 21. E. 4. 25. Abbe de Walthams case {per} Browne & Genney . , and if a common person doe without consideration giue to I. S. his his goods ( indefinitly ) al his goods do passe , and if a common person doe by deede enrolled enfeoffe the Queene of his lands without any consideration , the Queene shall be seised to her own vse , as hauing such prerogatiue in her person , that shee shall not bee seised to the vse of anie other . 28. H. 8. 7. Dyer Bokenhams case per Knightley . Gifts made vpon consideration may be explained by cases likewise drawne out of our bookes , though in a common persons case the consideration which is mentioned be false , yet the vse shall bee to the feoffees , as appeareth by Wilkeses case , 4. Whether vpon a false considera . expressed . vse shall be raised in a common persons case . who reciting by his deed falsely that in consideration of 700. li. payed , he had enfeoffed A. and B. to haue and to hold to them and to their heires , to the proper vse & behoofe of the said A. and B. in perpetuum : afterward by Office it was found that Wilkes was seised of the land , and that hee held in Capite , and I. was founde to bee his heire and of full age : yet it was helde that the heire should not be receiued to auerre the consideration false against the acknowledgement of his ancestor : 1. Eliz . 169. Dy . Wilk . case . and so it hath beene helde in Villiers his case , that where money is the consideration expressed another consideration shal not be auerred , 5 That a consideration may be auerred which is not repugnant to the vse expressed . neither shal a Causa matrimonij praelocuti be auerred where another consideration is expressed , but where no consideration is expressed , there a consideration may be auerred : or where the consideration auerred is not repugnant to the consideration expressed in the deed . 4. Mar. 146. Dy . Villier̄ case And though the consideration bee not valuable , yet it may be a good consideration to raise or to alter an vse : for in Sharingtons case it hath bin adiudged , that the affection of the father for the prouision for the heires males which hee may beget , and the affection which he hath that the land may remaine in his bloud and name , 6 That an vse may be altered by a consideration not valuable . be causes sufficient to make vses in the land , for ( as it is there said ) Naturae vis maxima , & Natura bis maxim . 8. El. 298. Com̄ : Sheringtons case . And so betwixt brethren pro fraterno amore is a good consideration to raise an vse , 13. El. 302. Dyer . and a man leuied a fine to the vse of himselfe , & such wife or wiues as hee should marry , and after hee tooke to wife A. she shal take in iointure being by way of vse , otherwise it had beene by estate executed . 10. Eliz . 274. Dy . per Wray , Mead , Plowden , & Ownslaw , & 3. Eliz . 190. Dame Brayes case .

Canon .

By our law a man cannot giue any thing to the common weale without consideration , but to a priuate person he may . li. hoc iure in princi . ff . de donat . Gl. in d . l. hoc iure . & l. Campanus ff . de oper . libert .

Canonol .

By the Cannon Law nudum pactum doth binde the party , especially being confirmed by an oath : much more a bare donation c . de pact ' . .

Nomom .

As to the point of consideration we shall better perceiue the strength and properties therof , 1 In what case● graunt● shal be taken most beneficially for the grauntee . when we enter into discourse of bargains and sales , now let mee know in what cases , and how farre forth graunts shall bee taken most beneficially for the grauntee .

Anglonomoph .

When a graunt is non-certaine , 2 That a grant non-certaine must be taken m●st strongly agai●st the grauntor . it must be taken most strongly against the grauntor ; for if a man graunt an annuitie out of certaine lande , and hee hath no lande at the time of the graunt , yet the grant shal charge his person 9. H. 6. 12. {per} Babingt{ur} . , and if a deede of graunt be good in parcell , and for parcell not , 3 That a grant may be good in p●rt , and for parcell not . that which is for the aduantage of the grauntee shal be taken to be good , as if a man graunt vnto me an annuitie , prouiso that it shall not charge his person , the prouiso is voide , and the graunt is good 20. E. 4. 8. {per} Towns . 14. H. 4. 30. {per} Hank . , And if an annuitie be graunted pro consilio impendendo , though the grauntee be well skilled in diuers sciences or faculties , yet counsell shal be giuen in that faculty only , which was intended at the time of the graunt 41. E. 3. 6. Annuitie 19. , But in some cases the graunt must be construed according to a reasonable and indifferent intendment , as if a man make a lease of a house , so that the lessee may make his profite of the houses within it , the lessee cannot in this case take downe or demolish the houses , nor make waste in them , for the intent was not so , 17. E. 3. 17. but if the King graunt to me visum franciplegij in omnibus terris meis , & feodis , I cannot haue this in my landes and tenements , 4 How the Queens grants and licen●ies shall be construed and interpreted . which I shall afterwards purchase , 38. H. 6.10 . But if the king graunt to a man that he and his heires shall bee quit of taxe for their landes which they haue , this is a good graunt though there bee no taxe due at the time of the graunt , Ibid . And so is the Law of Tenths and Fifteenes 19. H. 6. 62. 21. H. 6. 43. 21. E. 4. 45. , and he to whom the King graunteth a licence may not varie from the proper sense & the significancy of the words . 18 E 2. Fines 124. And if the king before the dissolution of Monasteries had licenced an Abbot and his Couent to make a feoffement , if the Abbot onely had made it the feoffement had beene voide , 21. H. 7. 8. And 3. Ed. 3. the King licenced one to leuie a fine of the mannour of Dale , to the intent to maintayne two Chaplaines , and hee woulde haue leuied the fine omitting the Chaplaines , but was not suffered , 3. E. 3. 5. and 3. Edward 3. the licence was to leuie a Fine of the Mannour of Dale , and hee woulde haue leuied the Fine with a foreprise or exception of certaine acres , parcell of the Mannour , rendring rent , but was not admitted to it , because it coulde not stande with the licence , which was that all the Mannour should bee charged with the rent , 30. E. 3. 17. So if the Queene licence one to make a Feoffement by deede , hee cannot make i● without deede , 21. H. 7 8. {per} Frowike . and this Lawe holdeth likewise in a common persons case , for if hee that hath a Warrant of Attourney to deliuer seisin absolutely , doe deliuer seisin vpon condition , this is a disseisin to the feoffour 12. Ass. pl. 24. , And a graunt is not to bee fauoured contrarie to the euident & perspicuous sense of the words . 3 That a grant is not to be fauored contrary to the manifest sense of the word . For if a man grant to another a loade of wood to take in his soyle euery yeare , and the grauntee surceaseth the two first yeares , and the third yeare hee taketh three loades , hee is a wronge doer for two of them : so if a man graunt to another a common for three beasts yearely , and hee taketh nothing the two first yeares , hee shall not haue common for three beastes the third yeare . 27. H. 6. 10. The aduowson of the Hospitall of Saint Katherines is appendant to the Mannour of B. the Hospitall being voide the Queene graunteth manerium ac omnes aduocationes cumpertinentijs , the present presentment doth not passe : 13. El. 300. Dyer . for it is fructus aduocationis , and not the aduowson it selfe . 11. El. 283. Dyer .

Codicgn .

The words of a grant are to bee taken most strictly against the grantor , because Phil . Deci . in Comm . ad Regul . iur . hee might haue expressed his meaning in more full , large , and manifest words .

Nomom .

Now resolue mee whether a graunt that is not good at the first may bee made good by matter ex post facto .

Anglonomop .

In no sorte : 1 That by the common law a grant that is not good at the first may not be made good by matter ex post fact● , neither by the Ciuil Law . for if there bee Lorde and three ioyntenaunts , and the Lorde graunteth the seruices of one of them to a straunger , this is a voyde graunt though the same tenaunt doe attourne , and suruiue his compaignions . For no attournement can make an euill graunt to bee good , 5. E. 3. 34. and if a man lease lande to the husbande and wife during their liues , and after graunteth the reuersion of the land which the husband holdeth for tearme of life , and then attournement is had , the graunt is voide , and the attournement also . 13. E. 3. Bro . Iointen . 63. And if a man be bound to a feme sole , and a straunger releaseth to the obligour , and after marrieth the feme , yet the release is not good . l. 15. E. 3. Feoffement . 63. So it is if in auncient time a Monke , Fryer , or Cannon professed , which was no Soueraigne of an house , had graunted to one an annuitie , this was a voyd graunt , though he had beene after dereigned , or made Soueraigne of the same house , or some other 2. R. 3 5. .

Codign .

As that which is lawfully done cannot be made void to all intents , so that which is altogether void at the beginning cannot be strengthned by continuance of time Phili . Decr . Comment . ad reg . iur . .

Nomom .

Let me aske you this question Anglonomoph . 1 Whether a tenant at will may graunt ouer his estate . whether may a tenant at will graunt ouer his estate or no , especially if he in the reuersion doe after agree to it .

Anglonomo .

2 That the estate of the tenant at will is in maner no estate . I think not : for it is not properly an estate because it wanteth certaintie , 27. H. 6. 3. but if my tenant at will be outed by a straunger , hee may reenter without my commandement : for the entre of a stranger doth not determine my wil , 11. E. 43 : and another reason why he cannot graunt his estate , is because his estate dependeth as well vpon his owne will , as the will of the lessor , and if he lease ouer the land , his will as to that intent is determined , and by consequent his estate , 22. E. 4. 5. per Brian . and his estate is such a non-estate in the eye of Law , that he cannot haue ayd of his lessor , 12. E. 4. 5. and if the heire accept a rent reserued vpon a lease at will made by his father , this cannot make the lease good , because it was voide before , no more then his acceptance of a rent reserued vpon a lease for yeres which is determined by reentrie , can make that lease good . 14. H. 8. 11.

Codign .

The estate of such a tenaunt is none at all in our law , vnlesse he should set downe his wil in certaine who demiseth . l. qui se patris C. vnde liberi .

Canonologus ,

So it is likewise in our law . C. de summa tri . & fide Cathol . l. 1.

Nomom .

I will not insiste any more vpon this matter , but will passe to the consideration of bargaines and sales .

The third Dialogue of Bargaines and Sales . NOmomat .

I will not aske yee what things may be sold , 1 What things are forbidden to be sold . least perhaps you answere mee such things as may bee bought according to your aunswere in your last discourse of Gifts and Graunts , but I would haue yee shew vnto me what things are forbidden to be sold .

Canon .

Things consecrate & religious may not be sold , as Monasteries , 2 That by the Canon Law things consecrate and religious may not be sold . and other places deputed to religious vses whasouer name they challenge , as Temples , Hospitals , Chappels , & such like , C. de Xeno . docti . co . Tit . & C. de Epis . & cleri . in l. orphanatroph . & 42. distinct ' oratorium . and that is accompted a religious place , in which a mans body or head is buried , ff . de reli . & sump . func . and therefore if a man be buried in an orchard parcel of a mans farme , that becommeth religious , and it may not be pledged or sold , but demised it may be . C. quae res obligat . possunt l. 1. l. quid ergn . §. sed si mortuum ff . de leg . 1.

Anglono .

Of this matter I haue spoken I hope sufficiently in the beginning of our second conference or Dialogue .

Codign .

3 The poysons by the ciuil law are forbidden to be sold . By our Law euill poysons are forbidden to be sold . l. quod saepe § veneni . ff . de contrah .

Nomom .

Why say you euill poysons ? as if any kind of poyson can be good .

Codign .

4 That there be some poysons which be medicinable and profitable , & the prohibition extendeth not to these . Yea , there be some good and sit for the expelling of diuers diseases , though they be not mixt with any other matter or thing , which is medicinable , so neesing wort doth cure phrensie or madnesse , wolfebane the biting of a scorpion , quicke siluer the scabbe or ytch , and arsenicke is profitable against the plague , as Mercurialis auoucheth , and sheweth further that manie artificers do vse poyson , and many creatures doe eate and liue vpon poyson , and pustles be cured by poysons , and poysons were before the fall of Adam , Mercurial . lib . 1. de vene . c . 3. & 4. yet there are some kinds of poison which are euill in themselues , & may not be vsed alone : and though Plato amongst his other lawes promulgeth , that no man ought to sel or any way intermeddle with poison . Plat . li . 11. de legi . And Galeu doth condempne Orpheus who taught the vse of poisons , Galen li. de antid . c . 7. and reporteth that the inuentor of a poysonfull herbe was therefore punished , Galen li. de purg . me : yet because there be some which are profitable alone , 5 That some poysons are profitable alone , some with the mixture of other things . & other some ( as our law speaketh ) adiectione alterius materiae , Cai . in d . li . 3 therefore poyson generally and absolutely is not forbidden to be sold by our law .

Anglonomoph .

By our Lawe corrupt vitaile is forbidden to be sold , and leather not sufficiently tanned . 13. H. 4. 1. 11. E. 4. 7. 1. R. 3. 1.

Nomo .

Let me heare of you some special kinds and cases of bargaine and sale out of your Law , 6 What things are forbidden to bee sold by the common Law . and some good diuersities , whereby me thinkes the knowledge and vnderstanding are greatly enlightned and increased .

Codign .

If a man bargaine and sell lands or goods to one vpon condition , 1 Where a thing was not fold at the first and where it was sold , but the sale is defeasible vpon condition . that if the whole price or that which remaineth to bee paied bee not payed or satisfied at such a day , then the thinge whereof the price is agreed vppon betwixt them shall bee vnbought : nowe if the money bee not payed at the day , the thinge whereof the communication was , in the intendement of Lawe was not solde at the first : l. 1. ff . de leg . Comm . & li. qui ea lege C. cod . But if it had beene sayde , that if the money had not beene paied at the day , then the thinge solde shoulde reuerte to the vendour , heere there had beene a perfitte bargaine and sale , but resolubilis sub conditione , defeasible vpon the condition not perfourmed , l. 1. ff . de leg . commissor . and in all conditions of bargaine and sale this is done that either an imperfitte sale is perfitted , or a perfitte sale is defeated . For when communication is had about the buying of a thing , and the price is agreed vpon , and the bargaine concluded , nowe if the vendour doe at the time of the bargaine and sale adde such a condition , that if any other man within a moneth or fifteene dayes next after ensuinge , will giue more money for the thing solde , that then the bargaine and sale shall bee voyde : L. 2. 1. rees{pre} ff . de in diem adicc . now the bargaine and sale is perfite , 2 A difference betwixt a {per}fite sale , & a sale to be perfited vpon a condition performed . but it is defeasible vpon a condition : but if in the same case the price bee agreed vpon , so that no person doe within a moneth or fifteene dayes giue more for it , now this sale is to be perfited vpon a condition performed , d . l. 2. respon . and there is a great difference betwixt these two bargaines and sales , For in the first case the buyer doth become owner of the thing Sed retractabiliter . l 1. §. sed & Marcellus ff . de addicti . in diem . And in the meane time he shall take , and enioy the profits of the thing sold , d . l. 2 in fi . l. Item quod dictum ff . de in diem addict . and the peril of the thing solde if it bee destroyed , lost , or made worse doeth belong vnto him , I. vbi autem §. 1. ff . de ti . in diem addict . but in the other case , namely , when an imperfect bargaine and sale is to bee perfited , the bargainee dooth not take the profites , neyther doth the perrill belong to him d l. vbi autem in princip . .

Anglonomoph .

You haue put good diuersities and wee haue manie cases suteable vnto them in our Law , which I will not omit . If a man graunt to one the keeping of his Parke , vpon condition that if the grauntee doe not well keepe his Deere within the Parke , the graunt shall bee helde as no graunt : and after the grantee killeth some of the Deere , 3 That a prouiso though i● be placed amongst couenants , may defeat a bargaine and sale . the grauntor may bring an action of trespasse for the breaking of his Parke , and for the killing of his Deere , 2. R. 2. Barre 237. and a prouiso in an Indenture of couenants though it bee placed amongst couenants , yet it shall bee of force in some case wholly to defeate and dissolue the bargaine and sale ; as if a man bargaine and sell a mannor with the Aduowson in fee , habendum to the vse of the bargainee and his heires , in such manner as in the Indenture of couenants is agreed , and he couenanteth to suffer a recouerie to the vse expressed in the Indenture , rendring a rent to the bargainor and his heires with a distresse for the same , and a nomine paenae , & further pro vlteriore securitate , it is concluded that the bargainor should leuie a fine to the bargainee with a rendring of the rent to the bargainor , prouiso that the bargainee shal regrant the Aduowson for life to the bargainor , and if it be couenanted farther that all estates afterward to be made shall be to the said vses , now if a recouerie be suffered , and a fine leuyed , but varying from the Indenture of couenants , and the bargainee dieth before the regraunt of the aduowson , the prouiso in this case is a condition , and for the breach of the condition the bargainor may enter 14. Eliz . 311. Dyer . , & as to that which you haue said that where the sale is perfite , but defeasible vpon condition , 4 That where a bargaine and sale is perfite but defeasible vpon condition , the vende● shall take the profits till the condition be performed . the vendee shal take the profits till the condition be performed , it agreeth to a case in our Lawe , where a feoffement is made to a feme couert of certain land , & the husband after disagreeth to the feofment , yet the mesne profits which were taken betwixt the time of the liuery , & the disagreement , shall not be restored to the feoffor . For if a Praecipe quod reddat , had been brought against the husband & the wife after liuerie , & the husband had disagreed pending the Writ , the writ shall abate , yet the taking of the profites is iustifiable : for the feoffement made to the woman is good till the husband disagree Per Br. Feofm . de terres 36. contra opinion . Brian . 1. H. 7. 16. .

Nomom .

Suppose that no day be limited when the vendee is to pay the residue of the money , 1 When no day is limited for the payment of a summe what time the Law will require . or a stranger is to offer more mony as in your cases put before Codign . shall the defeasance be void ? or what time will the Lawe require for the payment of the money ?

Codign .

2 In such case the party charged with the payment shall by the Ciuill Law haue lx . dayes .

3 That by the Common Law when no day is limitted , the money is presently due , yet in some case by some authoritie the discretion of the Iudge is to limit a time .

In such cases the Law doth limit a time and doth assigne to the partie charged with the paiment , the space of lx . daies Gl. mag. in c . Illo vos de pignori . & facit optime . l. quod si nolit . §. qui mancipium ff . de Aedil . edict . .

Anglonom .

In our law we haue a rule that when a man is bound in xx . li. to pay x . li . & no day of paiment is limitted , the lesser sum is a duty presently , & ought presently to be tendered 20. E. 4. 8. & 21. E. 4. 38. le case del maior de Exetor̄ per touts les Sergeants & ascuns des Iustices . , howbeit in such cases by the opinion of Starkey Ibid . per Stark . , the discretion of the Iustices shall limit a time hauing regard to the distance of the place , and to the space of time wherein such a thing may be performed : for the obligor is not compellable to pay the mony within one houre , neither may he differ the paiment the space of 7. yeares , but the time must be adiudged by law : so if I prescribe to haue common because of vicinage in such a village , namely euery yeare after the corne be seuered & carred away , to put in my beasts into the field , & all the terre tenants of the village haue caried away their corn & hay except one man onely , now the Law shall adiudge whether he had sufficient time to carry away his corne & hay , when his neighbors did carrie it away Ibi . {per} Stark . & Fairef . , & so in the case before , the discretion of the Iustices ought to measure the time , and surely his opinion seemeth reasonable vnto mee , though I dare not affirme it to be Law . For euerie mans busines ought to be rated by a conuenient time , and therefore the learned Philosopher hath well defined time in this sort : 4 The definition of time according to the opinion of Aristotle . Tempus est mensura motus secundum prius & posterius : and as the motion doeth measure the place : so doeth time measure motion : for a daies iourney is measured of a day , an houres of an houre , Arist . physicor . 4. c . 11. & 12. lib . 1. de anim . c . 3. lib . de generat . & corrupt . 2. c . 10. and if a man be bound to enfeoffe one , and no certain day is limited when the feoffement shall be made , that may be done and performed in a reasonable time 14. E. 3. Dette 138. .

Nomom .

Are there no other things to defeat a bargaine and sale but onely conditions ?

Codign .

Yes ▪ for a bargaine and sale may be auoided for some defect of some substantial thing required to the perfection of the contract , 1 That a bargaine and sale may be auoided through defect of some substantiall thing belonging to the acte . as where the thing that is sold is not markettable or the price is not certainely set downe , §. pretium . Iusti . Eo . & C. Eo . l. fi . or when lawfull consent is wanting , as when a bargaine and sale is extorted or enforced through feare or threatning , Metus causa ff . & C. quod met . causa & l. si voluntate C. de rescin . vend . or when there is fraude and deceite in the contract , ff . de dol . l. eleganter l. si voluntate C. de rescin . vend . as if the thing solde haue some inward fault : 2 That fraude and disceit in the contract by the Ciuill law doth defeate the contract . As if a Horse or some other beast that is to be sold , be troubled with some inward or secrete disease , C. de act . empt . I. empt{ur} l. emptor . §. animalium quoque ff . eod . for buying and selling being a contract bonae fidei , whatsoeuer thing is done in it vltra probatum vendendi modum is auoidable by law , d . l. 1. l. Ex empto . §. redhibition̄ ff . de act . emp . §. si quis virgin̄ ib . but the fault in such case , 3 A difference where the fault of the thing sold is Latens or Patens . which is in the thing sold , is either latens or patens : if it be plaine and visible , the bargainor is cleared from fault , §. nunc qualit{ur} retractet{ur} l. ea quae §. quaed . ff . de contrahen . emp . but if it bee a secrete fault then a distinction must be vsed : for either it was in the beginning and growing at the time of the sale , so that it may easily be cured , and yet not easily perceiued , & then the seller is not anie way to be charged : or else the secrete fault was some festered and inueterate disease , and in such case the seller is to be charged L. mortis C. de per . & com . rei vend . , but if the thing that is sold bee liquide and gustable , and the buyer doth taste of it , or if it be measurable and hee doth measure it as corne , or if it be ponderable and hee doth wey it as mettall : or if hee marke a beast which hee hath bought , and the beast bee afterward chaunged ; in all these cases the dammage resteth vpon the buyer L. 1. & l. qd si neque §. fi . ff . de per . & com . rei vend . l. 2. C. eo . : But if the things aforesaid be not tasted , 4 That whether the fault be Latens or Patens if the bargainor doe warrant the thing sold to be wi●hout fault , he is bound by the warranty by the Ciuill Law . measured , weighed or marked , but be sold at a venture ; as if a man sell all his wine or oyle in such a house , and doth warrant it to be good and merchantable , or if he warrant the beasts that hee selleth to be sound , the seller in such cases is punishable l. si vna . ff . de per . & com . rei vend . , but if he had not warranted it , then the law is otherwise d . l. 1. §. 1. C. eo . & l. qd saepe §. in his ff . eo . .

Anglonomoph .

In these cases , which you haue now put , our Lawe ( as I take it ) differeth verie little , or nothing from yours : for whereas you say , 5 That bargains and sales , matters in writing and obligatorie , may be auoyded by al●eaging that they were made or done per menace or by du●esse . that a bargain or sale enforced by terror may bee auoyded : in our Lawe euen matters in writing & obligatorie may be for the same cause defeated and frustrated : and if a man seised of an acre of land doe giue it in taile by deed , and maketh a letter of Attourny to deliuer seisin , and all this is done by duresse of imprisonment , and liuerie of seisin is made , this is a disseisin to the donor , and the deed of gift and liuerie may by Law be auoided 41. E. 3. 9. 2. E. 4. 19. per Littl . Park . Tit . Graunts Sect . 17. , and if a man menace me to kill me , if I wil not grant to him an annuitie of xx . s . & for doubt of death I graunt it vnto him , this graunt is voidable , 11. R. 2. Duresse 13. But if a man grant an annuitie to another by threatning him that he will cary away his goods , wherupon he graunteth vnto him the annuitie , this grant is not voidable by reason of such menacing , because he may haue an action to recouer the goods if they be taken away , 7. E. 4. 21. Park . tit{ur} Grants Sect . 18. but a threatning of batterie is a good cause to auoid a deed 4. E. 2. Duresse 9. , and so is the threatning of imprisonment a good cause to auoid a bonde , 8. H. 6 12. but otherwise it is of a threatning to burne my house , 39. H. 6. 51. and a duresse or menacing at one place shall auoid an obligation made at another place , 38. H. 6. 13. {per} Moyle . 33 H. 6. 24. 2. H. 5. 10. & as to that which you haue spoken of fraud & deceite in bargaines and sales , & the warranting of a thing to be good & sound , which is nought and corrupt , I could put many cases agreeing with your assertions & diuersities . 6 That by the Common law a warrant●e made vpon the concluding of a bargaine and sale doth binde otherwi●e ●t is if the warrantie be made after the b●rgaine concluded . If a man sell vnto one certain cloth & warrant it to be of such a length , and it is not of that length , he which buyes the cloth may haue an action of disceit against him by vertue of the warranty : but if the warranty be made at some other time after the bargaine , he may not haue a writ of disceite , Fitzh . nat{ur} br̄ 98. K. & if a man sell to another seeds , & warrant thē to be of a certain countrie , if they be not so a writ of disceit will lie : otherwise it had bin , if he had warranted that they should haue grown , or if hee should warrant that the horse which hee selleth , should go 50 miles in a day : and a writ of disceit lyeth for selling corrupt victuall , without warrantie , but not for selling rotten sheep though it be with warranty , 7 That the warranting of a thing which is euident to the sense is no cause to bring a Writ of disceit by the Common law . & the warranting of a thing to be blacke which is blew , where the colour is euident to sense is no cause of bringing a writ of disceit , but is meerly void : otherwise it is if the buyer be blind , or the thing that is bought be absent 11. E. 4 : 7. 13. H. 4. 1. , & if a man sell a horse which hath a disease in his body , or if he sell certain quarters of corne which is full of grauell , a writ of disceite will lie without warrantie , 20. H. 6. 36. {per} Paston . 11. H. 6. 22. & if one sell to another certain tunns of wine , & warrant thē to be good & they be corrupt , the vendee may haue an action vpon the case against the vendor , Fitz . N. B. 94. & the action will lie without warranty 7. H. 4. 14. according to the opinion of some , but M. Fitzh . saith that there ought to be a warranty , or els no action wil lie , for in such case his taste may be his iudge , Fitz . N. B. 94. C. but where it is with warrantie the Writ must say that the def . at the time of the warrantie made , knew that the wine which hee solde was corrupted 9. H. 6. 53. .

Nomom .

You haue spoken enough of this matter : now shew me whether by a bargain & sale of the profits of land , the land it selfe do passe .

Anglono .

The graunt or bargaine & sale of the profits of the land is the grant of the land it selfe , 45. Ed. 3. Graunts 90. 4. Eli . 219. Dy . & if a man do lease to one an acre of land for life , 1 That by the Com●on law the graunt or sale of the {per}fi●●●f lands is the grant of the land it selfe . reseruing to himselfe the herbage , this reseruation is voide , for he hath reserued the same thing in substance , 38. H. 6. 34. because the profites of land & the land it self are one & the selfe same thing in substance 10. H. 7. 9. 6. E. 6. 71. Dy . , but he may lease his Park excepting the wood & vnderwood , & his mannor reseruing the warren , but the soile of the wood and warren shall goe to the lessee 14. H. 8. 1. 33. H. 8. Br. Reseruant . 39. .

Codign .

By our Law a man may graunt and demise the vse of a thing and yet not graunt the thing it selfe , 2 That by the Ciuill Law a man may grant and demise the vse of a thing , and yet not grant the thing it selfe . Suppose a man graunt vnto mee his Mare for a certaine time , I may during the time vse the Mare at my pleasure , but I may not lend her or set her ouer to some other to vse , neyther can I haue the fole which commeth of her , for by the graunt I may claime vsum onely , but not vsum fructum : and so he to whom the vse of a mans ground is graunted may take the profits of the ground to his owne vse , but may not sell them to others Gazatup . in vocabular . verbo vti & frui . .

Nomom .

I would gladly knowe when a man selleth his land in which there is treasure hidde ,

1 When a man selleth land in which treasure is hid and the vendor knowe h not of it , whether shall the ven●ee haue the treasure ?

2 How this word ( Treasure ) is taken in the Ciuill law .

whether the vendee shall haue the treasure , because the vendor knew not of it at the time of the sale .

Codign .

It may bee you take the word Treasure generally , not properly & as it is vsed strictly in our Law ; for if a man do hide anie thing in the ground for gaine , or through feare , or to keep it more safely , within time of memorie this may not properly haue the name of treasure l. nunquam D de acquirrer . domin . , for a treasure properly is , when money or things of good value haue lyen from time out of minde hidden in the ground , so that no man now hath propertie in it d . l. nunquam . . 3 That by the Ci●ill law money and other things necessarie to the common vse of this l●●e are f●rbidden to be hidden & buried in the ground . It hath been forbidden by many lawes that money may not be buried l. 4. D. ad leg . Iul . pecul . , and these Lawes haue reason for them , Aristot . Nicomach . 5. for it is against the nature of money that it should bee buried , being inuented for the daily and common vse of men : And the same may bee affirmed of other things which are hidden : L. 5. l. 7. D. de vsufr . ea re que vs. con . and these prohibitory lawes are forfeited with this penalty , that things so hidden shall be forfeited to the Treasurie . 4. Plato his superstitious opinion of things hidden in the earth . Plato had such a scrupulous , or rather such a superstitious conscience , that he made by his lawes treasures to be immobiles , & Dijs inferis sacros , and his precept is straunge in this case . Quae minime deposuisti , ne tollito . Plat . lib . 11. de legi . Adrianus . Caesar made a Law ( as Spartianus reporteth ) that if any man had found treasure in his owne ground , himselfe should haue it : if in another mans , he should giue the halfe to the owner of the soile : if in a publique place , hee should diuide it equally with the treasurie . This Law was abrogated by other Lawes following , 5. How the Ciuil law doth order and dispose of treasure and reuiued by Iustinian , but nowe and long time agoe our Law hath transferred it to the Prince in whose Realme it is found , L. 3. § Nerati D. de acquir . poss . Alberic . Gentilis Disputati . De cad . 1. ca. 10. So that I cannot possibly see how the vendee in your case proposed shal by our law haue it .

Anglonomoph .

Nor by our Law which saieth , Quod thesaurus competit domino regi , & non domino libertatis , si non sit per verba specialia , aut per praescriptionem . Fitz . Coro . 281. 436. And in this case though hee sell vnto him the profit de terra : 6 What the Common law doth determin of treasure . yet he doth not sell vnto him the profites in terra which treasures are . Plow . com̄ in le informa . pur mines .

Nomom .

I will content my selfe with this difference which you haue put , and will now proceede according to the platforme of our forementioned order to learne something of seignories and seruices .

The fourth Dyalogue of Seignories and Seruices . NOmomathes .

Because things are better and more certainly known by the definition of them , therefore I pray you let me first haue of you some definition or description of a Seignorie .

Codicgn .

A Seignorie , which we call feodum , may be thus described . 1 The discription of a seignorie by the Ciuill law . A bountifull granting of land for doing homage or some other speciall seruice . Glo . in vsi . feu . Tit . quib . mod . feod . acquir . in princip . c . vnico § in primis & Tit . in quib . caus . feud . amit . & de feud . dat : mi. valuas . ca. vnico . & melius Tit . de feud . dat : in vicem leg : commissor : reprob : cap : vnic :

Anglonomoph .

A seignory with vs , 2. Likewise by the Common law . is nothing else but a relation of delitie betwixt the tenaunt and the Lord .

Canonolog .

In our Canon law it is shortly defined : 3. By the Canon law . The granting of land for homage . C. ex diligenti . de simon .

Nomomath .

Shew me I pray you how homage and other seruices had their first existence and beginning , but first shew me what homage is .

Anglonomoph .

Homage is thus performed . The tenant that is to do homage , 1. What homage is , and how it is to be performed by the Common law . must haue his head discouered , and his Lord sitting , he must kneele before him vpon both his knees , and shall holde forth both his hands betweene the hands of his Lord , and shall say as followeth . I become your man from this time forward of life and member , and earthly honour , and to you shall be faithfull and loyall , and shall beare vnto you faith for the tenements , which I claime to hold of you sauing the faith which I beare to our Lord the King : which being done the Lord sitting shall kisse him . Litt . li . 2. c . 1.

Nomom .

Hath this Ceremony beene auncient ?

Codicgn .

2. That Homage hath bin practised in ancient ●ime . The kneeling and giuing of a kisse at the doing of such seruice is very auncient : for Tiridates the King of Armenia did kneele down before Nero the Emperor , whom Nero lifted vp and gaue him a kisse . Tranquil . in Neron . And long before his time , Alexander the great did imbrace , and with a kisse greeted such as made the like potestation of obedience and loyaltie vnto him , Plutarch . in Alexand . and long before that as it seemeth it was vsed in Iudaea , for vpon these words of the Psalm Psalm . 2. r . 12. ( kisse the sonne ) our English glosse addeth by way of interpretation ( in signe of homage ) and Tremellius and Iunius ( in signe of fealty : ) sithence these times this respectiue humiliation hath spred it selfe into other countries and territories : for the Duke of Gelderland did conceiue an oath in these words to Charles King of France : Ego deuenio vassallus ligeus Caroli regis Francorum , pro ratione quinquaginta millium scutorum auri ante festum diui Rhemigij mihi soluendorum , &c. Bodin . lib . 1. de repub . c . 9.

Nomom .

I desire greatly to knowe the originall and first blossoming of other seignories .

Anglonomoph .

1. What a Manor is , and wherof it consisteth . The most common seignorie of accompt which wee haue in our Law , is a seignorie by reason of a Manor , which may be thus defined . A manor is an inheritance of auncient continuance consisting of demesnes & seruices , perquisites , casualties , things appendant and regardant , customes , liberties , &c.

Nomoma .

What ? do so many things concurre to make a manor : will not demesnes and seruices serue ?

Anglono .

Yes , demesnes & seruices will suffice as materiall causes to make a Manor , 26. H. 8. 4. but it is a naked manor which hath nothing else .

Nomom .

I would gladly heare somewhat of the commencement and first creation of a Mannor .

Anglonomo .

M. Parkins doth very well and originally describe it in this maner . 2. The original of a Manor . The originall of a Manor was when the K. did giue a thousand acres of land , or a greater or lesse parcell to one of his subiects and his heires , to hold of him and his heires , and the donee edifieth a house vpon his land , as his mansion place & of 20. acres . or lesse , or greater parcell , he doth infeoffe a stranger before the Statute of Quia empto . terrar . to hold of him and of his heires as of the same house by the plowing of 10. acres of arable land parcel of that which remaineth in his own possession , & infeoffeth another of another parcell to hold of him by carying ordure to his arable land , and infeoffeth a third man of a third parcell to goe with him in the warre against the Scots , and so by continuance of time ( saith he ) a Manor is made . Park . Reseruat . fol. 128. Sect . 670. Yet by his fauour somewhat els goeth to the making of a Manor : namely , suite of Court at his house or mansion place , 33. H. 8 Br. Comprise . 31. Mannor 5. and this suite must bee the suite of more freeholders then one ( so that some doubt may be made of M. Kitchins assersion , when he saith , that in some Manors there be no tenants but copiholders , & yet in such Manors be Court barons Kitch . Court Leet & Baron Tit . Manerium . fol. 4. ) for if all the freeholds do escheat vnto the lord beside one , or if he purchase al but one the manor is extinct , for it cannot be a●manor vnles there be a court baron belonging to it : and a Court baron must be held before suitors , and not before one suitor , therfore one freehold cannot make a manor . Br. Ca . Sect . 210. & 23. H. 8. Br. Court baron 22. in fi . & 33. H. 8. Suit . 17.

Nomom .

You haue well declared vnto me the beginnings of seignories and manors : but haue there bin no laws made for the strengthning and preseruing of them : for me thinks they be good meanes to increase and support , the wealth , puissance , and florishing estate of the realme .

Anglono .

Yes , our law in this case hath not either slumbred or winked . For in the ancient statute of Magna Charta it is prouided that Nullus liber homo det de caetero amplius de terra sua , Statutes made for the pre●eruation of seignories and manors . vel vedat de caetero , quam vt de residuo terrae suae possit sufficientur fieri domino feodi seruitium ei debitum quod pertinet ad feodum illud , Magn̄ charta c 13. which statute ( as M. Stanford auoucheth , ) is but a confirmation of the common law : and he ( a most diligent and exquisite searcher of the reasons of law , so that I may boldly speake of him , that which I shal not say impudently & vntruly , Foelix , qui potuit rerum cognoscere causas ) sifteth out the reason of this Law . For ( saith he ) if one that held by Knights seruice migh haue bin suffered to haue aliened the greatest part of his land , he would haue aliened the same peraduenture to holde of him but in Socage , or by some small rent , and then hauing so little a liuelod left to himselfe , how had hee been able to haue done the seruice of a Knight or man of warre , or what should his Lord haue had in warde to haue found one to haue performed the seruice ? surely little or nothing . Stamf . praerog . c . 7. Tit . Alienati : sans licence . But it seemeth doubtfull notwithstanding the Statute of Magna Chart . whether the tenaunt might alien his whole tenancie or not , whereupon the Statute of Quia emptores terrarum was made , which permitted euery freeman to sell his lands or tenements , or any part therof at his pleasure to hold of the chief Lord by the same seruice , that the feoffer held , prouided alwaies that by any such sale , there come no lands to mortmain . This Statute ( as M. Stamford noteth ) remedieth the mischiefe , which was before found in the wardship , but not the other mischiefe touching the defence of the Realme , for when one mans liuing is dismembred , neuer a one of the feoffees nor the feoffor is able to doe the seruice of a Warrior for want of liuelode , there being so little quantity of land in euery of their hands , yea much more vnable sithence this statute is the feoffer then before , for before when he gaue it to hold of himselfe , he reserued somewhat in lieu of the land which went from him , whereas now he can reserue nothing of common right . Stamf . ibid . And the land which he retaineth in his owne hands may perhaps be of small value .

Nomom .

What is the most generall and most common seruice of all ?

Anglonomoph .

Fealtie , 1. Fealtie is the most generall seruice in the Common law . 2. and in the Ciuill law . for that is incident to euery tenure , vnles it be tenure in frankalmoign . Littlet . lib . 2 c . 3. Sect . 13. &c. 5. Sect . 22.

Codicgn .

So it is with vs : for fealtie which of vs is called fidelitas , is due to euery Lord to whom any seruice is to be performed : and euerie tenant ought to do such seruice , 3. That by the Ciuill law the Common law and the Canon law , a religious man ought to do fealtie . yea though he be a religious man and professed vnder rule . ca. vnico Tit : de natura feudi . Et Tit . qualiter vassall . iur . deb fideli : dom̄i : Et in ca. vnico . tit quib . mod : feud : amittatur . Et in quib . causis feudum amitt . & Tit . quae fuit pri . causa benef . amit .

Canonolog .

But such a religious man may not say , Ego deuenio homo vester , nor humiliate himselfe to execute the rite of homage . C. veniens & C. ex diligenti . de Simon . grauem de excess : praelat . cap . fin: de re Iud :

Anglonomo .

By our law he may do homage : but may not say to his Lord Ego deuenio homo vester , because he hath professed himselfe to be onely God his man , but he may say , I do vnto you homage , and to you shal be faithfull and loyall . Littlet . lib . 2. c . 1. Sect . 2.

Nomoma .

Shew me I pray you some speciall kinds of these seruices , that I may know them more fully , and more distinctly .

Codicgn .

1. The diuerse kindes of seruices in the ciuill Law , and their definitions . Seruices are diuersified according to the qualities of the persons to whom they are to be done : if it bee to be done to an Emperour , it is to be tearmed an Imperiall seruice : if to a King , a regall seruice , Cap. 1. de feud : march : & ducat : & in ca. 1. quis dicat . dux , comes , marchio . if to Religious persons Ecclesiasticall : if to Lay-men , secular , Tit . de his qui feud . dar . pos . & Tit . Episcop . vel Abbar . but when it is to bee done to a lesser estate then to an Emperour or King , as to a Duke , Marquesse , or Earle , then it is called feudum honoratum ; sometime land is giuen by inferior persons & meaner men without expressing any seruice , and then the Law intendeth that fealty only is to be done , and this is called Francum or Liberum , Ca . 1. de no . form : fidel : sometime it is giuen with reseruation of speciall seruice and that is feudum non nobile , Ca . fi de capilan : qui eur : vendid . sometime it is giuen in perpetuum & sometime but for tearme of life , and then it is called perpetuum vel temporale De feud : march : in prin. de alien . feud . in fine , & de feud : guard : & castald . . But though by the oath of fealtie the vassalle be bound to serue his Lord in warre , yet this is limited to such case where the warre is not notoriously vniust or vnlawfull : for if it be otherwise , though hee doe him no seruice in warre , yet he shall not forfeit his tenement , In cap : Dno guerram in prin. in Tit . hic fini . lex deinde &c. neither is he bound to do his seruice to his Lord if his Lord be excommunicate , or banished , vntill hee haue obtained absolution or a recalling from banishment : D. cap . Dno guerram in fin. but in a iust warre , the vassalle is bound to helpe his Lorde against euerie other person , who is not the Lord of the vassall , yea euen against his father , brother , or sonne .

Anglonomoph .

Seruices in our Law are of diuers sorts : 2. The diuerse kinds of seruices in the common law and their definitions some being more noble and some lesse noble : of those which are more noble , some belong to the king and some both to the king & to subiects : of those that belong to the king , some be domestical only , as Petite Sergeancy : some bellicall onely as Knights seruice : in Capite some both domesticall & bellicall , as grand sergeancy , & some of the more noble seruices belong vnto subiects as well as to the king , as knights seruice and homage : those which be lesse noble may be diuided into two branches : for either they are ingenuous , or seruile : the ingenuous are of two sorts : either performable by particular men , or a certaine people , as fealty , rent seruice , & the like which make socage tenure : or else performable by a certain people only , as burgage : the seruile or base seruice , is villenage . Of all these seruices saue such only as haue bin before described I will speake somewhat , seuerally , briefely , & in order . Petite Sergeancy , is where a man holdeth his land of the king , paying yearely vnto him a bow , or a speare , or a dagger , or a launce , or a spurre of gold &c. Littlet . lib . 2. ca. 9. sect . 1. Knights seruice in Capite , is where a man holdeth his lands or tenements of the king as of his crown immediatly ab antiquo , by doing some warlike seruice . Grand sergeancy , is where a man holdeth his lands or tenements of the king as of his Crown immediatly , by doing some speciall seruice to the king in person ; as by carrying his banner or launce , or by being his marshall , or sewer , or caruer , or butler , &c. Litt . li . 2. ca. 8. sect . 1. 23. H. 3. Gard . 148. of homage and fealtie hath been spoken before . Rent seruice , is where the tenaunt holdeth his lande of his Lord by a certaine rent , for which , if it be behind at the day , wherein it ought to be paied , the Lord may distraine for it of common right . Burgage , is where the tenants of an auncient borough , do hold lands within the Borough of the King or some other person , as of his borough by a certaine rent . Lit . li . 2. c . 10. sect . 1. 2. Villenage , is where a man holdeth of his Lord , either by doing vnto him some particular base seruice , and such a one is called a tenant by villenage , or by doing generally whatsoeuer base seruice his Lord will commaund and impose vpon him , and such a tenaunt is termed in our Law a villaine . Lit . li . 2. c . 11. sect . 1. & 2. This miserable estate of villenage , had his beginning soone after the diluge , and now by the consent of all nations it is ratified , 3. The original of villenage & the nature thereof . for the West Indians though they haue no knowledge of diuine or humane Lawes , yet bondmen they haue , and the Mohometists make Christians their bondslaues , the Portugallians make villaines of the Mahometistes which they sell by companies as flockes of sheepe in the market . Bodin . lib . 1. de repub . c 5. The Romains had power by their law to sell or kill their villains : Tacit. li . 14. but for mittigation of cruelty the Law Petronia was made , whereby it was forbidden that none should put his villaine to death without cause , which law was executed by Nero , Senec . lib . 3. de benefic . & after by Adrianus : Sparcian in Adrian . but our law a more concionable fauorer of life hath restrained the hands of the Lord from the bloudshed of his villaine , and from the mayming of him , Litt ' lib . 2. c . 11. Sect ' 32. hauing regard to the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blowes maymed , Exo . 21. ver . 26. & 27. which lawe Constant . the Emperor did put in practise , l. 1. de Emend , seruor . C. but al the lands & goods purchased & possessed by the villaine the law frankly giueth to the Lord , if he wil seise & claime thē , Litt ' lib . 2. c . 11. sect ' 8.10 . wrentched I confesse is the estate of such men , but yet patiently to be tollerated , because quam potestate alijs deferre voluim , ferre debemus , & they whose auncestors , or themselues haue ackowledged themselues to be villaines , must now duetifully beare the yoake , though Cui plus licet quam par est , plus vult quam licet , Gellius lib . 17. c . ●4 . and let the Lords of such villaines hearken to that which is spoken of an heathen man diuinely : Boni moderatoris est restringere potestatem , Ammian . lib . 29. but to leaue these particulers & to proceed more generally , as one man may hold lands of another by euery of these abouesaid seruices as of his person , 4 The tenure wherby a man holdeth of a honor or Manor is described , and by examples illustrated . so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any honor which is come to his highnes by discent from any of his ancestors , hee shall not holde in Capite , for by the words in the first Chapter of Prerogatiua regis , it is euident that if it shal be said a tenure in Capite , it must bee holden of the crowne of a long time , the words be ab antiquo de Corona , & that cannot bee when it is but newly comen to the Crowne , and the statute of Magna Charta c . 31. did ( as Master Stamf . saieth ) helpe this matter by expresse words , if such an honour came to the crowne by way of escheate , but not if it came by way of discent , 5 Certaine honors which be not of the auncientnes of the Crowne . or any other way : and that statute doth set forth certain honours by name which be not of the ancientnes of the crowne , that is to say , the honor of Wallingford , Notingham , Bullingbrook and Lancaster , therefore he that holdeth of the King , as of these Honors , holdeth not of the king in chiefe , Stamfords Praerog . c . 7. but other honors there bee which of so long time haue bin annexed to the Crowne , that to hold of thē is to hold in chiefe , for whereas one held of the king as of a certaine honor , 6 Some honors which are annexed to the Crowne . to yeeld a certaine rent to the keeping of the castell of Douer , this hath beene taken to bee a tenure in chiefe , and so it hath been thought if one hold of his highnes as of the Honor of the Abbe of Marle , Fitz . nat. bre. 259. and Anno vndecimo of king Henry the seuenth , the honour of Ralegh was annexed to the Crowne , therefore if any man hold as of that honor it is a tenure in capite , 34. H. 8. Br. Cas . 230. and therefore there is a good rule in the Register of Writs , that a man shall not make a fine for alienation of lands held of the King as of his honour , but for lande held in Capite only : for there be certain honors which be held in Capite , and there is a certaine writ , that the Escheator shal not greeue any man for alienation of land held as of an honour , for that is as of an honor , & not as of the kings person , & no fine shal be paied for the alienation of such land . Regist . 184. Br. Alienac ' 33 And whereas it was found by Office that land was held of the queen as of her principality of Wales , by the seruice of going with the Prince in Warre at the charge of the Prince , per curiam , 18. El. Dy . {per} Curiam . this is no Tenure in capite . And Master Finchden putteth this diuersity , that where an Honour is seised into the Kings hands , if a Manor held of the Honor do escheat to the king by a common Escheat , if the King alien the Manor to hold of him , the tenaunt shall hold by the same seruices as hee helde by force of the Honour ( for the Honour seemeth to bee vice domini in this case and as a meane Lord ) but if it come to the King by forfeiture of warre or by some other treason , or by some other cause which toucheth the Kings person , and the king seiseth , and enfeoffeth another , the feoffee shall hold of the King as of his Crowne : 47. E. 3. 21. {per} Finchden . and though the statute of Magna Charta ca. 31. before recited doe say , Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingford , Bolen &c. non faciet aliud seruitium quam fecit praeante : yet this is to be intended of a common Escheate and not otherwise . 29. H. 8. Br. Ca . 114. So a man may holde of the King as of his Manour , and yet not holde in Capite , for it was found by office that one helde land of the King , as of his Manor of Plimpton , and other landes as of his Manour of Darington , which came to the king by the attainder of treason of the Marquesse of Excetor , this hath beene thought to be no Tenure in capite , for tenures in chiefe did begin in auncient time vpon the graunts of Kings to defend them against rebelles and enemies : and at this day the Queene may create a tenure in Capite , if shee giue land to hold of her person : otherwise it is if it be giuen to hold of an Honor , Manour , &c. for a Tenure in chiefe must bee immediatly of the King , and is created by the King onely : for a Tenure created by a subiect cannot be a Tenure in chiefe , nor haue any prerogatiue annexed vnto it , and if the tenants of an Honour should hold of the King in Capite , the Honour when it came to the King should bee destroyed , which may not be , and there is no reason that the tenaunt in whom there is no default should bee preiudiced in his tenancy by the offence of the Lorde , 30. H. 8 44. Dyer . and if the Q. purchase a Manour of which I.S. holdeth by Knights seruice , the tenant shall hold as hee held before , and hee needeth not to tender his liuerie , nor primer seisin : for he doth not hold in Capite , but as of a Manour , and if his heire be in ward by reason thereof , he may haue an Ouster le maine at his ful age , and if the Queene grant the Manour afterward to W.N. in fee , excepting the seruices of I. S. now I. S. holdeth of the queen as of her highnesse person : yet he shall not holde in Capite but by such seruices as he helde by before of the Mannor : for the Queenes act may not preiudice her tenant , 29. H. 8. Br. Ca . 113. but where a man holdeth of the Q. by reason of an other thing , as namely , by reason of a Mannour , this is no tenure in Capite , 3. Eliz . Com̄ 241. Wildgous case . but if the King be seised of a Mannour , and giueth to a stranger an acre of the Mannour , to haue and to hold to him and to his heires of his body engendred without expressing any seruice , the donee shal hold of the King by knights seruice in Capite , Ibid ' 240. per Car . and tenures likewise may be to hold of one as of his person or of his Manor by diuers other seruices , as if a man had made a feoffement of land before the statute , or a gift in taile sithence the statute , to holde of him by the making of a bridge ouer certaine land , or by making a Beacon in the land giuen , this is a good tenure : for a man may holde of an other by doing seruice for a common good , as well as for the priuate profit of the Lord , as to repaire a bridge , or a high way , or by keeping such a Castle , for the Lord himselfe in this hath profit with others . 11. H. 7. 12. 12. H. 7. 18. {per} Finch 24. H. 8. Br. Cas . 51.

Nomom .

You haue taken some paines Anglonomoph . in describing the particular kindes of tenures : 1 Whether one within age be compellable by law to doe all manner of seruice either by himselfe or some other . now I would heare somewhat of Codicgn . whether one within age be excused from personall seruice , because his age is not fit to serue , so that the seruice age is suspended vntill the maturitie of his age : or whether he shal be compelled to doe his seruice by a substitute .

Codicgn .

To dissolue that question , a difference is to bee taken , for either the Father of the Heire which is within age , 2 A diuersitie in the ciuill law , whether the father of such an infant dyed in a iust war , or a home in his ●ed . dyed in the warlike seruice vndertaken for the defence of his Lord in a iust warre , I meane that which is waged for the safetie of the Common weale ; or else he dyed in his house by humane infirmity without any bearing of armes : in the first case he is not bound to doe any seruice either in his owne person , or by any other person interposed during his minority , because his father who died in the field is supposed in lawe still to serue by the glory of his valour , Instit . de Excus . tutor . §. sed si in bello ff . ad leg . Aqu . l. qua actione , §. si quis in colluctatione . which the best and most learned of all Poets did well imagine : who when hee had placed Caesar in the middest of extreame troubles , to comfort and encourage him , representeth vnto him the ghost of Scaeua , one that dyed a good while before , but yet after many assaults , and many wounds , stood out as a Conqueror , Lucan . li . 10. which conceite of Lucan , Tasso a moderne Italian Writer , a man of an excellent Poeticall witt in the description of Guidoes Funerall doth passionately , though Popishly glaunce at , S. Torqua● . Tasso . Canto . 4. Gierusal . liberat . but if the Father dyed not in warre , nor in the expedition , but by naturall death in his owne house , then if the Heire at the death of his Father bee in his pupillage , hee must performe that seruice by a substitute .

Anglonomoph .

3 That by the common law the infan● shal be in ward if his father died seised of land held by Kn ghts seruice wi●hout any such diue●sitie . But by our Law hee shall be in ward to the Lord during his minoritie , if hee holde his Lands by Knights seruice , and the Lord shall haue the profites of his land that hee may maintaine a sufficient man to doe him seruice in the warre , whereas the heire by reason of his tender age cannot personally perform the seruice , nor by the want of discretion prouide a conuenient person to accomplish it , Litt . li 2. c . c . 4. sect . 3. but if hee be made a Knight within age , then because the Lawe intendeth that hee is fit to doe his seruice , because knighthoode is bestowed in regard of precedent merite , or of some eminent prowesse and towardnesse , as may appeare by that saying of Scipio in the senate : ab annis septemdecim ad se nectute semper vos aetatem meam honoribus vestris ante istis , ego vestros honores rebus gerendis precissi : Liuius li. 38. the law is otherwise : But 2. Edw . 6. in the case of Sir Anthony Browne of Surrey vicont Mountegue , a difference was taken , 4. A diuersitie in the common law where the heire of the tenant by knights seruice is w●th in age , and a knight at the time of his fathers death & where not . where the tenant by Knights seruice dieth seised his heire being within age , and a Knight at the time of his death ; and when after his death , hee is made Knight during his minority : for in the former case it was helde that he should be in warde notwithstanding his knighthoode , 2. E. 6. Br. Gard . 42. & 72. For otherwise the auncestor may procure his sonne within age to be made Knight by collusion , to the intent to defraude the Lord of his ward , but this seemeth to bee but a weake reason , because knighthood is not by intendement of the law granted vpon so sleight a cause : but it seemeth to master Brooke , where the heire is in warde , and is made knight being in warde , this shall free him from wardship , for the statute of Magna Charta ca. 3. ( Postquam heres fuerit in custodia , cum ad aetatem peruenerit scil . 21. annorum habeat haereditatem suam sine releuio & sine fine : ita tamen qd . si ipse dum infra aetatem fuerit fiat miles , nihilominus terra sua remaneat in custodia dominorum vsque ad terminum supradictum ) this ( saieth Br. ibid . Master Brooke ) verie probably ( guiding his opinion by the premisses ) is onely to bee intended where the heire is made Knight within age , being in ward after the death of his auncestour , and not where hee is made Knight in the life of the auncestor , but admit this to be meant of such an heire onely , yet by no consequence can a man inferre heereof , that if an heire within age bee made Knight in his fathers life time , hee shal be in ward after the death of his father , nay there is good authoritie for the contrary . 6. Elizab . Comm̄ 268.

Nomomat .

Let mee knowe , I pray you , what penalties lie vpon the Tenant if hee doe not his seruice .

Codicgn .

1. What penalties lye vpon the tenant if he doe not his seruice . By our Law the vassall is depriued of his tenancie , of whom fealtie is demaunded , and hee refuseth to performe it : C. vnico , quae fuit prima causa . §. sed non est alia . so that the Lord doe demand fealty at due times and allowed by Law , because if he should demand it euery yeare , the vassall should not loose his tenancie , §. & si vastallus si de feud . de funct . §. licet vastallus &c. domino guerram in Tit . hic finit . lex &c. also the vassall looseth his tenancie , if beeing at full age , 2 Many causes of the tenan●s forfeiture in the ciuill Law . hee be not in expedition with his Lord , or if he doe not depute some able person for the discharge of the duetie , or if hee doe not pay to his Lord stipendia militiae pro quantitate feodi , when he is lawfully demaunded , De pace iuram . firm . §. sin . and that is said to be a due quantitie of a Knights fee , when the vassall which goeth not in war , nor sendeth a sufficient man , doth yeeld the halfe part of the yearely value of his tenancie to the Lord . C. Imperialem §. firmiter de prohi . feud . aliem . {per} Freder .

Anglonomo .

There be many conclusions in our Lawe aunswerable to that which you haue said , 3. Some causes of forfeiture at the common Law . for it hath bene affirmed , that if a man holde his land of his Lord by homage and fealtie , and hee hath done homage and fealtie to his Lord , and the Lorde hath issue a sonne and dyeth , and the Seignorie discendeth to the sonne , in this case the tenaunt which hath done homage to the father , shall not do homage to the sonne , because when a Tenaunt hath once done homage to his Lord , hee is excused for tearme of life to doe homage to any other heire of the Lord , Litt{ur} lib . 2. c . 7. sect ' 13. But if a man bee seised of a Mannour , and an other man holdeth land of him as of the foresayde Mannour by homage , and hath done his homage vnto him , and a stranger bringeth a Precipe quod reddat against the owner of the Mannour , and recouereth the Mannour against him , and sueth execution , in this case the Tenaunt shall againe doe homage to him that recouered the Mannour , though hee haue done homage before , because the estate of him who receiued the first homage , is def●ated by the Recouerie , and it lyeth not in the mouth of the Tenaunt to falsifie or defeate the Recouerie which was against his Lord . Litt{ur} ibid sect ' 17. And if a Tenaunt which ought by his Tenure to doe homage to his Lord , come to his Lord , and say vnto him , that hee is readie to doe him homage for the tenements which hee holdeth of him , and the Lord doth then refuse to receiue it , after such refusall the Lord cannot distreigne the Tenaunt for the homage , before the Lord require him to doe homage vnto him , and hee refuseth , Litt{ur} lib . 2. c . 7 sect ' 19. 20. and he that holdeth by Knights Seruice of the King , neede not goe to warre with him , if hee will finde a sufficient person conueniently armed , and fit to goe with the King , and this seemeth good reason : For it may bee , that hee that holdeth by such seruices , doth languish in sicknesse , so that hee cannot goe , nor ryde : And a Feme sole which holdeth by such seruices , may not in such case goe in proper person , and it hath beene said , that Escuage shall not bee graunted vnlesse the King goe to warre himselfe in proper person , and after such a voyage royall it hath beene likewise affirmed , that by authoritie of Parliament Escuage shall bee assesed and put in certaine how much euerie one that holdeth by an entyer Fee of Knights Seruice , which was not with the King by himselfe or by an other for him , shall pay to his Lord of whom hee holdeth by Escuage , as if it bee ordeigned by authoritie of Parliament , that euery one which holdeth by an entyer Fee of Knights seruice , that was not with the King nor any other , &c. for him shall pay to his Lord fortie shillings , then euery one that holdeth of his Lord by the moitie of a Knights Fee , shall pay to his Lord fourtie shillings , and hee that holdeth by a fourth part , tenne shillings , and so pro rata Litt{ur} lib . 2. c . 3. sect ' 5 6. 8. 7. E. 3. 29. .

Nomom .

Resolue me , I pray you , whether when the Tenaunt hath committed treason or felonie , and thereof is convicted and attainted , hee shall ( as to his tenancy ) incurre any preiudice .

Condicgn .

In such case eyther the offence is committed against the person of his Lord , 1 Whether , when the tenant hath committed felony or treason , and is attainted , he shal suffer any preiudice in his tenancy . 2 A diuersitie in the ciuil law where the offence is committed against the person of the Lo●d , and where against the person of a stranger . and so hee doth preiudice all those that are to succeede him in the land , by order and course of Law depriuing them of the aduantage of inheritance , Cap. vnico §. denique in fin. in illis verbis fi tamen fuerit paternum Tit . que fuit prima causa ben . amitt . or hee hath offended against some other person , and not against the person of the Lord , then the children only , and such as w●re to take benefit by the person of the father , as issuing from his body are repulsed from the inheritance , §. Si vassallus culpam : si de feud . defunct ' . and then it goeth to them of the kinred which are nearer in degree . Gloss . super verbo reuocabuntur in d . si vassallus culpam .

Anglonomoph .

By our Law , where the tenant is outlawed of felony , it is in the Lords election to haue a Writ of Escheate , supposing that his tenant was outlawed of felony , or that hee dyed without heire , for by the attainder the bloud is corrupted : 48. Ed. 3. 2. But it seemeth by Nicholses Case , 3 That by the common law by attainder of felony or treason the blood is corrupted & in the o●e case the land shall e●chete to the King : and in the other to the immediate Lord . that the partie attainted ought to bee dead before the land can escheate , for according to the opinon of Dyer and Barham , in the Kings Case after the attainder , and till Office be found , the fee simple shall bee in facto in the person attainted so long as he shal liue , for as he hath a capacitie to take land of a new purchase , so he hath power to hold his auncient possessions , and hee shall be tenant to euery Precipe , and if hee died before Office found , and the land be held of the King , the land shall goe to the King in nature of a common eschete , 18. Eliz . Com̄ 477. Nichols case . but this is to be intended in case of felonie , for in case of treason the King shall bee presently after the attainder in actuall possession without office found by the statute of 33. H. 8. cap . 20. and if a man be executed for felonie or die after iudgement before he be put in execution , yet the Writ shall say pro quo suspensus fuit , and if he bee put to death by some other punishement then hanging , though the Writte say pro quo suspensus fuit , that is not materiall , Fitz . nat. bte . 144. H. and if the father purchase lande , and his eldest sonne is attainted of felonie and dieth , hauing issue a sonne , and the father dieth , the next in degree of discent and worthinesse of bloud vnto the sonne attainted , shall not haue the land , but it shall escheate to the immediate Lord of whom the Land is held , for the bloud is corrupted : otherwise it had bin if he had died in the life of his father hauing no issue . 32. H. 8. 48. Dyer .

Nomom .

Though I must needs confesse that it is very good reason that the sonnes of the , which are disloyall subiects and traitors to their Prince should bee barred from the inheritance of their auncestours , that their fathers infamy should alwaies accompanie them , and that they shoulde liue in perpetuall memorie , indignitie , and disgrace , that their life should be a punishment vnto them , and their fathers faults a continuall corrisiue ( for that is done , because their fathers vices are feared in them , & it may be well thought that being bredde , and brought vp of naughtie parents , they will be prone to doe the like , and punishment in that case is vsed in the nature of a medicine and not in fourme of a penaltie : and as it hath the effect of a punishment euery one is punished for his owne fault onely : but as it hath the effect of a medicine , so one man is punished for an others fault , that by suffering shame hee may be deterred from crime ) yet heere it may be said , what place is there left for innocencie if the most guiltles , may be punished for the misdeameanor of the most guilty ; for as it is not the fault of the corne that it groweth in a bad soile , so it is not the fault of the sonnes that they are begotten of lewd fathers , therefore it may seeme meete and expedient that there should be ibi paena , vbi culpa : and that offences should rest vpon the authors , and that the falle shoulde goe no further then the fault , and there is a Law in Deutronom . Non interficiantur patres pro filijs , nec filij pro patribus , sed quis que pro peccato suo interficiatur , Deut . c . 24. and in an other place , vnusquisque in iniquitate sua morietur , & quicunque comederit vuam acerbam illius dentes obstupescent , Ierem . 31. and again anima quae peccauit ipsa morietur , filius non portauit iniquitatem patris . Ezechi . 18.

Codicgn .

But Saule did not obserue that rule in Deutronom . when he did put to the sword the citizens of Nobe , where he did slay men , women , children , oxe , asse , and sheepe ore gladij . 1. Reg . 22.

Canonol .

But Dauid did keepe it , 4 The aforesaid determinations & conclusions of ciuill and co●mon law , touching the forfaiture of the offendor are examined by the Law of God . who would not haue had reuenge taken vpon Ishboseth the son of Saul , 2. Reg . 4. and caused them to be slaine , who wrought his death .

Codicgn .

Yet God did otherwise , who in the diluge did destroy the parentes with their children , who spared neither sexe nor age in Sodom , who destroyed together all the whole nation of the Amalekites , who would needs haue Achan destroied with the children , who did roote out al the inhabitants of Ierusalem .

Cononol .

We must otherwise conceiue of God his iudgements , then of mens proceedings : hee hath said viae meae non sunt viae vestrae , all perfection , goodnes , and iustice beginneth at him : who doth not any thinge because it is iust , but it is therefore iust because he doth it , or woulde haue it done ; and if Achan had bin araigned before an Ordinary tribunal , he only had perished and not his children , but God his iudgement is extraordinary , and his will is therefore a Lawe because he is god , he is not bound to render accompt to any : neither is he guided by any Lawe but by the Lawe of his owne will : and though one man know not what an other doth purpose and imagin , yet God knoweth the hart and searcheth the reines and might see somewhat condemnable in Achans children , which man could not discouer . Yet in some cases hee doth obserue an ordinarie course of punishment , for Numb . 26. Corah perished onely but not his sonnes , but they were kept safe for the Lords seruice , and of their posteritie came Samuel .

Codicg .

That which I spake before ( Canono . ) out of the scipture was but by way of obiection , for our law punisheth not the Sons with death , but only with losse of inheritance in case of treason . ff . & C. ad l. Iul . mai .

Anglonomoph .

The same Lawe doe we obserue both in felonie and treason together with the forfaiture of the goods .

Codicgn .

The losse of inheritance in our Lawe doth comprehend the forfeiture of the goods .

Nomom .

Ye haue dwelt a long time in this discourse of tenures and seruices : now therefore I would haue ye to speake somwhat of lointenancie and tenancie in common .

The fifth Dialogue of Jointenancie , and tenancy in common . Nomom .

Let me aske you this question Codign . when two be iointenants , or tenants in common as we tearme them , whether by rigour of lawe the profites ought to goe to them all in common , or no .

Codicgn .

By common right they ought to haue equall profit , whether it be of money , 1 That Io●●tenants , and tenants in common ought to haue equall profit . marchandise , or other matter of negotiation : for if one should haue more profit thē an other , & the gain should not be alike , the societie ( or as it pleaseth you to tearm it ) Iointenancy , or tenancy in common should be Leonina , that is rather the deuouring of Lyons , ff . Pro socio l. fi non ●nerint §. vlti . then the deuiding of men , or according to the common prouerbe , a man should deuide honie with a Beare , yet in this equall diuision , which the law requireth , recompence must be had of thinges , persons , and the industrie of the parties . l. Omnes , & l. fi socij , & l. l. si . non fucrint ff . cod .

Anglonomoph .

By our law if two bring a writ of warde of the body of the heire beeing within age , and the one of them is summoned and seuered , and the other recouereth , hee which was seuered may haue a writte of accompt against the other for the profites , 45. E. 3. 10. and a writ of accompt lieth , 2 That by the Comon lawe a writ of accompt will lie , if one iointenant take all the profites . if one iointenant take all the profites , 39. E. 3. 35. and for cutting of wood which is held pro indiuiso & the selling of it , a writte of accompt will lie for the one iointenant aginst the other , 47. E. 3. 22. and the plaintife need not shew in certaine in his writte of accompt , by whose hands the resceit of the mony giuen for the profits was , 39. E. 3. 35. and if one of the iointenants do cut wood and carie it away , the other may take it , and remooue it to his owne house ; 2. E. 4. 24. {per} Danby . but if one of the iointenants take monie for all the profits , the writte of accompt shal not bee brought against him as receiuor generally , 14. E. 3. Accompt . 70. 19. E. 2. Briefe 339. but as receiuor to the common profite of them both , 30. E. 1. Accompt . 127. and if two executors be , & the one assignneth auditors , he that assigneth auditors shal not haue a writte of debt sole for the arrerages of accompt without his compaignion : 9. H. 6. 11. also there is an other case in our books , that E. and I. did deliuer an hundred pounds to R. and T. & R. and T. did put a hundred poundes of their owne together with this money to merchandise with the whole stocke for the common profit of them all , according to the rate of euery one of thē , in such case E. sole may not haue a writte of accompt against R. and T. 10. E. 3. 489. 10. E. 4. 5. so if there be two iointenants of a Manor , and the one of them vndertaketh to be baily for the other for his moity , a writ of accompt shal be maintenabl against him , 21. E. 3. Accompt . 66. if he haue any especialty to shewe prouing the assumpsit , otherwise not , 17. E. 2. Accompt . 122. yet in an accompt brought against one as the baily of his Manor which the plaintife had in ferme , the defendant said that himselfe was iointe farmor with the plaintife of the lease of A. & this plea was allowed , though the plaintife shewed forth a deed of demise made to him onely , 8. E. 2. Accompt . 115. and if two Merchantes occupie their goods and merchandise in common to their common profite , the one of them may haue a writ of accompt against his companion , Fitzh . Nat. Bre. 117. D. 10. H. 7. 16. or the writ may suppose that the defendant was receiuor of the plaintifes monie , & the defendants for al manner of contracts to their common profit , 30. E. 1. Accompt . 127. 39. E 3. 35. 16 H. 7. 16. {per} Keb but one executor shal not haue a writ of accompt against his coexecutor for the goods of the dead . 39. E. 3. 35. 6. H. 4. 3. 13. E. 3. Execut . 91.

Nomomath .

Whether is iointenancie , though it be aiointenancie of the inheritance , dissolued and determined by the death of one of the iointenants .

Codicgn .

Iointenancie is dissolued by natural death , 1. That iointenancie is dissolued by death , vnlesse there be some clause in the creation of the estate to the contrary . vnlesse there be some clause in the demise of the lande and in the creation of the estate to the contrary . ff . pro socio . l. actione §. morte . in fin: Iusti . eo . §. soluitur .

Anglonomoph .

Ind ede there bee such clauses sometimes vsed in demises , for wee haue such a case that a lease was made to two habendum ijs pro termino vitae successiue vni eorumpost alterum , sicut nominantur in Indentura , & non coniunctim : the question was in this case , whether they were iointenantes or no , & it was ruled without argument that they were not iointenants , but that there is a remainder to him who is put in the second place in the Indenture : 20. Eliz . 361. Dy . And so where a lease was made to three , by the premisses habendum to the one for life , the remainder to the second , the remainder to the third , the opinion of the court was that they should take successiuely & not iointly . 5. Mari . 160. Dy .

Codicgn .

And by a ciuill death iointenancie may be determined : 5. Mari . 160. Dy . Likewise by the will , ff . pro socio l. actione . § publicatio . & Iusti : eod . §. publicatio . and by the alienation of one of the Iointenants . L. verum in fin: & l. societatem §. 1. ff . eod . l. tamdiu . C. eod .

Anglonomo .

By our lawe the nature of iointenancy is such , that hee that suruiueth shall haue the whole tenancy according to such estate as he should haue had if the iointure had still continued . For if there be three iointenants in fee simple , and the one of them hath issue & dieth , yet they that suruiue shall haue the whole tenementes to themselues , & the issue shall haue nothing : Littl . lib . 3. c . 3. Sect . 5. and if lands be giuen to two , and the heirs of one of thē , this is a good iointure , & the one hath freehold & the other fee simple , and if hee which hath the fee die , he that hath the frehold shal haue the entierty by suruiuor for the terme of his life : Littl . lib . 3. c . 3. Sect . 13. and if two iointenants be seised of an estate of fee simple , and the one of thē granteth by his deed a rent charge to another man out of so much of the land as belongeth to him , in this case during the life of the grauntor , the rent charge is effectuall , but after his decease the graunt is voide , as to charge the lande , and hee that holdeth by the suruiuor shall holde it discharged , because he claimeth the land by suruiuer and not by discent from his companion : Littlet . lib . 3. 1. 5. Sect . 15. And so the lawe seemeth to haue beene when one iointenant did enter into religion , least the freehold of a moitie might be in suspence , as well as an assise of Mordauncestor will lie , and a warrantie collaterall may discende in the like case . Fitzh . N. B 166. a. 5. E. 4. 3. 34. E. 3. Garrantie . 71.

Nomoma .

If a man grant all his goods to two what passeth by this .

Cadicgn .

By our law all corporall things passe both in demesne , and possession , 1. That by the Ciuill lawe by the oint gift of all the goodes of a man all corporall . things passe . and they are iointenants of them , ff . eo . l. 1. & 2. but actions doe not passe , but the grauntor if he will haue the grauntees to take any benefit by the graunt , must make the grauntees or one of them his procurators to sue in his name , and to recouer to their owne vse . L. 3. in princip . ff . eo .

Anglonomoph .

By the name of goods in our lawe no inheritance passeth , but it is a question with vs , if one deuise to his wife the third part of all his goods and chattels , whether this shall be intended as they shall be after the legacies or debtes paid , or as they were at the time of the deuise : 30. H. 8. 59. Dyl . But this doubt of later time hath receiued decision , 2. That by the Common law if a man deuise the third part of his goods to his wife it shal bee so rated as they weare at the time of the death of the testator . 3. That the Queene may graunt a thing in action . for where a man deuised the moitie of his goods to his wife , and died , it was ruled that she shall haue the goods as they were at the time of the death of the testator , if the testator bee not indebted : 5. Mari . 164. and as for graunting things in action , we haue this positiue grounde in law , that the Queene may graunt ouer her rent and condition of reentrie for the nonpaiment of it , and her action or any thing that her highnesse hath in action : but contrariwise it is of a common person . 2. H. 7. 8.

Nomom .

Now shew me of what things , and in what sort Ioyntenancie or Tenancie in common maybe .

Codicgn .

1 That iointenancy by the Ciuil law may be of all such things as lie in contract . It may be of all such things as lye in contract , as lambe , milk , wooll , cheese and corne , and whatsoeuer is gained by the labour of oxen , or the harrowing of horses , or the letting to gist of kine : L. si non fuerint . ff . pro soc . and by the nature of the contract , when two are agreed to bee tenants in common , of the profits comming and rising of beasts , the losse of the beastes pertaineth onely to him in whom the very propertie of the beasts bee : but the charge of the pasture and labour , which is to be taken about them , belongeth onely to him who is admitted to be tenant in common for the profits . 2 That the limitation of ●enancy in common is by the partie , but the construction of i● by the law . The possession in common of beasts , doth continue vntil they haue yong , if the possession were limitted at the first vntill they had young : and if two be agreed to be tenants in common of al the profits of a certain ground , the tenancy in common ceaseth not till all the profits be taken : and therefore if two be agreed to be tenants in common from the Calends of March , vntil such time as their fields are new to be tilled & sowne , they shal be tenants in common vnto the Calendes of Nouember , because betwixt both the Calendes the fields may be tilled & so wen , or suppose that they haue contracted a tenancie in common of kine , from the Calends of Iuly , vntill they haue yong , this tenancie in common shal continue till the Calends of Aprill next ensuing , because for the most part they are wont to calfe betwixt both the Calends . L si conuenerit in princ . ff . pro socio .

Anglono .

A Parson may grant to another the moity of his tithes for yeares , whether it be lamb , wooll , or corne , and yet hee hath no possession of them , because they are not yet in esse , 38. E. 3. 6. but yet hee hath an interest in them , and may grant the moitie of them as well as one may grant to another , that it shal be lawfull for him to take euery yere a Deere , or a Hare , or a Cony within his soyle , this is a good grant : 10. H. 7. 30 and by the same reason that he may grant his tythes , he may grant the moitie of them , and so make a tenancy in common .

Nomoma .

Suppose the case to be this , that two Iointenants or tenants in common haue agreed to make a common wall about their ground , or that they should plant a certain number of trees in their common soile , and one of them alieneth his part , whether is his Assignee bound to performe the couenant ?

Codicgn .

In our law there be many authorities , 1 That an assignee in the Ciuill Law is bound by the couenant of his grantor . that he ought to performe the couenant . L. quaesit §. quod a Titio ff . de praeca . & arg . l. in hoc iudicium §. penult . ff . de commun . diuid . & ff . de damn . infect . l. fluminum §. adducitur . & ff pro soc . l. Idemque .

Anglonomoph .

To that our Law agreeth , for if a man lease a house and land for yeares by deed indented , and the lesse doth couenant that hee and his assignees shall repaire the house , 2 That by the common Law in su h case the assignee is bound by the couenant . and after the lessee graunteth ouer his terme , and the assignee doth not repaire it , an action of couenant lieth against the assignee , for this is a couenant which runneth with the land : 25. H 8. Br. couen . 32. Deputic . 16. and according to Mr. Brookes opinion , it lieth also against the lessee after that hee hath assigned ouer his terme : and if he bring seuerall writs of couenant against them both , there is no remedy , til he haue had execution against one of them , and then if he sue the other , he may haue an Audita querela . Br. Couen . 32.

Nomom .

I will content my selfe at this time with your instructions touching iointenants and tenants in common , and will passe ouer to the examining of the course of Exchanges .

The sixth Dialogue of Exchaunges . NOmomath .

What if two do deale together after this sort : the one of them giueth a horse and x . s . for the horse of another man , whether is this a bargaine and sale , or an exchange .

Codicgn .

1 That by the Ciuill law ●ontracts for a certaine price are not exchanges . In such case either it is intended , and vttered betwixt the parties , that the one shal haue such a thing for a certaine price , as namely , that A. shall haue the horse of B. for ten pounds : and B. taketh of A. sixe pounds and an other horse in full paiment & satisfaction : this is cleerely a bargaine and sale L. tenetur . §. 1. de action . emp . : but if A. had giuen B. a horse for a horse , that had bene an exchange Ar. I. item si pretio . §. 1. ff . locat . .

Anglonom .

2 That by the Common law the word ex c●●●● am must bee v●ed in the exchange . By our Law there must be the expresse word of exchange mentioned , otherwise a thing can not be said to passe by exchange , for the word excambium only maketh an exchange , as the words liberum maritagium only do make frankmariage : for if I giue to one an acre of land by deed indented , and he by the same deed giueth to mee another acre for this acre , nothing passeth except liuery be made , and then the liuery onely transferreth the land : otherwise it had beene if the word ( exchaunge ) had beene vsed in the deede , and the estate which the parties are to haue in the land exchanged ought to be equall : 3 That the estates must be equall . and Choke saith , that both the things exchanged , ought to be in esse at the time of the exchaunge , and therfore an exchange of land for rent granted de novo , is not good , 4 That the things exchanged must be in Esse . but an exchaunge betwixt a rent and a common which are in esse at the time of the exchange , is good , and so it is of land and rent : 9. E. 4. 21. {per} Brian , Choke , & Nedham . And according to his opinion an exchange of the right which the disseisee hath , to the land wherof the disseisin is committed , for an acre of land in which the disseisor hath right , is no good exchange : 3. E. 4. 10. {per} Choke . And where the word ( exchange ) is mentioned , though the conueyance bee but an Indenture of Couenants , yet it shall amount to a good Exchange : for an Indenture of couenants was made betwixt a Prior and the Master of Gunnell Hall in Cambridge , that the Master should haue three acres of land to him and to his successours , in perpetuall exchange for one chamber of two chambers to bee assigned by the said Master at his election to the said Prior and his successors ; this hath beene held to be a good exchaunge , though it bee by way of Couenant : 9. Ed. 4. 38. And though it bee avouched for lawe , that if by a deed of composition it be agreed betwixt two , that the one shall haue such lands in allowance of other landes belonging to him , that this is a good exchange : 3. E. 3. 19. yet I doubt whether an exchange may be accomplished by such counteruaileable words : 5. That an exchange is good , though the one part of it doe inure by way of extinguishment . but a man may giue land in exchange for a release which cannot iniure but only by way of extinguishment , though there be some authority against it , 7. E. 3. 37. and therefore Nortons opinion is iustly denied by Thorpe , whereas he held that in euery exchaunge there must be a mutuall transmutation of the possession , 16. E. 3. Exchange 2. for if a man release to another his estouer of woode , which he is to take yearely in his wood , in exchaunge for land giuen to him in exchaunge for the same release , this is a good exchange though the release take effect by way of extinguishment : but it is as great a profite and aduauntage to the tenant to be discharged of the estouers , as if so much had beene graunted vnto him out of another mans wood , Park . Tit . Exchange 53. 31. E. 1. Exchange 16. and the Law well perceiueth the profit which a man may haue by way of extinguishment , for if the father being tenant in taile doe alien the land entailed with warrantie , and hath a rent charge in fee issuing out of the lande of his Sonne which doth discend vnto the sonne , this is a good assets in value notwithstanding the extinguishment . 31. E. 3. Garranty 29.

Nomomath .

Whether may Ecclesiasticall benefices , promotions , and liuings be exchaunged or no .

Canonolog .

1. That incumbents may not exchange . their benefic●● by the Canon law . The incumbents may not by their sole authority chaunge their benefices , but they may exchange them interueniente authoritate Episcoporum , ad quos pertinet collatto : but there is a question in the glosse , whether the Chapiter may authorise such permutations sede vacante C. quaesitum de rer . permut . glos . in Clem . vnica . E. Tit . : and it resolueth briefly , that in such things , 2. That the Chapiter may warrant permutations fede vacante in such benefices wherein they haue interest or authoritie . wherin they haue a common collation , either by reason of authority , or by reason of interest & consent , it may authorise exchanges sede vacante , but a in other cases not . Glos . in d . Clem . vnic . super verbo . Conferantur .

Anglonomophylax .

The reason in our Lawe wherefore suche cclesiasticall persons , 3. That by the Common law Ecclesiastical persons their patrons and ordinaries ioyning together cannot make any good exchange of Ecclesiasticall benefices . nor their patrons and ordinaries , though they all agree cannot exchaunge the inheritances of spirituall liuings , is because the statute strictly prouideth that no alienation be made in mortmaine : for a thing which was amortised before , may be again amortised , and therefore if a religious person do appropriate a Church which is of his owne presentation without the kings licence , it is forfeited though it were amortised before , 19. E. 3. Mortmain 8. and in such case where one Abbot did alien to another , the collusion was to bee inquired of , as well as in the alienation of land made by a secular man to a religious corporation , 16. Afs. pl. 1. for the wordes of the statute of Mortmaine bee verie strong and large against such purchasors , 4. That th● statute of Mortmain is most strict and pregnant in words . which are thus : Prouisum est quod nullus religiosus emere , vel sub colore donationis , aut termini , aut alterius tituli cuiuscunque ab aliquo recipere , aut arte vel ingenio sibi appropriare praesumat , per quod terrae , & tenementa huiusmodi ad manum mortuam quocunque que modo deueniant , Stat. de religios . 7. E 1. Mortmain . 3. and therefore the case was , that a femme sole purchased lande in fee , and tooke to husband the villeine of a Bishop , which hee had in right of his Bishopricke , and the Bishop entred and this was adiudged a mortmain , for according to Wickinghams opinion the words of the statute of Mortmaine are quocunque modo : otherwise it shall bee if the tenant of the Bishop do die without heire , 41. E. 3. 21. but 19. Henr . 6. the contrary is held to be law , but if the villeine himselfe purchase land , it is held there that in such case a Bishop or an Abbot cannot enter , 19. H. 6. 56. but Thorps opinion is 41. E. 3. that though he may not enter in the case aforesaid , yet he may retaine the land against the villein , and the king may afterward ratifie his estate , which is no more in plain tearmes , then that an estate so gained is voidable only and not void , and as to the exchange of benefices betwixt parson and parson it is seuerally punished by edict of Parliament in our realme . 31. Eliz .

Nomomathes .

I will not stay longer vpon the inquirie of exchanges , for you haue opened vnto me the nature of them , and how far they extend in these few cases : now let vs passe to a larger examination of these doubts and points of deuises and legacies .

The seuenth Dialogue . Of Deuises and Legacies . NOmomathes .

First I pray you tell me , whether this manner and custome of disposing by a mans last will and testament , hath bin in ancient time practised or no .

Codicgn .

It is verie auncient , 1. The antiquity of wills . for it was one of the Lawes of the twelue Tables , Vti legassit suae rei ita ius esto , L verbis legis ff . de verb . signif . But before Solons time it was not lawul for a man to deuise his goods Extra familiam , to strangers : and therefore , when Solon did ( by law established ) grant this libertie to the Athenians , it was plausibly receiued of them , and accompted the best of all his laws . Plutarch . in Solon . But Plato in his writings straungely , howsoeuer diuinely conceited , dispraiseth this law , 2. Plato his exception against Solon hi law concerning willes . and calleth the makers of it childish , because by that meane , a window is opened to deceit , & to flattery : for he saith , that when men are at point of death , they beginne to dote , and their vnderstanding is broken , and therefore it is very likely , that euery man dying will dispose and appoint many things contrarie to the Lawe , to the vsuall practise of them that liue , & to the example of their ancestors . Plat . li . 11. de legib . This sentence of Plato , Iustinian an Emperour exquisitely busied in the compiling of Lawes , because hee had rather erre with Plato , then yeelde vnto the truth with Solon , alloweth , and frameth his Lawes accordingly , Authent . de trient . & sem . in l. Paulus ad Treb . and S. Ierome writeth , that Solons Lawe was repealed in his time , because Priestes which were commonly imployed in the making of Willes , did greedily and odiously drawe to themselues , the inheritance of the dead , L. 1. C. de sacr . Eccles . and another reason may be added in defence of Platoes opinion : because men in daunger of death are for the most part too prodigall , which Aristotle noted , Diogen . Laerti . in vit . Aristotel . and Tacitus pronounceth more peremptorily speaking of Otho , Tacit. lib . 2. histor . Pecunias distribuit parce , nec tanquam periturus , hauing affirmed before , Difficilius est temperare , 3. Solons law is maintained and defended against Plato . qua te non putes diu vsurum . But Solons Lawe leaneth to a more stable roote , then that it may bee shaken by the weake blaste of such colourable reprehensions : and Solon did make exceptions to his Lawe for hee made these testaments voide which were made by any in the extremitie of his disease , or which a man was inforced to make by imprisonment or torment , or by the perswasions and flatterie of his wife : but surely the making of Willes is necessarie , L. 3. D. qui test . fa . pos . and without it men cannot effect the good education and bringing vp of their children , nor bee able of their proper goods , chattels , and other mooueable substance to discharge their debts , and after their degrees set foorth and aduance their children and posterity : 32. H. 8. c . 1. Willes 2. nor leaue their wiues such comfortable support as in conscience they ought .

Nomomathes .

Let mee knowe I pray you what persons may be legataries or deuisees , and who not ?

Codicgnostes .

Euerie one that may bee made heire or executor may bee a legatarie or deuisee , 1. Such as be vncapable of inheritances & goods may not be deuisees , heires , or executors by the Ciuil law . 2. A difference in the Ciuill law betwixt the making of a deuisee and the making of an executors . but to thē , which are vncapable by Law of inheritances or goods , no deuise can be made , neither can they be made heires or executors ; C de haered . institl . 1. but there is a difference betwixt the making of a deuisee and the making of an heire or executor , because he that is to bee made heire or executor must bee an able person in law , aswel at the time of the making of the testament , as at the death of the testator , and the vndertaking of the executorship , or entre into the inheritance : ff . de haered . Insti . l. si alenum §. de extraneis & Iust . de haerqual . & differ . § in extraneis . but as to the deuisee it is sufficient if he be capable at the time of the death of the testator . ff . de donat . causa mort : l. in mortis . & de condit : & demon . l. eum qui . & ff . de iur . fisc : l. non intelligitur §. quando .

Anglonom .

By our Law to all such persons , to whome a graunt may be made , 3. That by the Common law a●perious to whom a graunt m●d be made a deuise may be made , vnlesse it otherwise happen in some few cases . a deuise may be made , vnlesse it otherwise happen in some few cases , and the deuise ought to be good & effectuall at the time of the death of the deuisor : as if a man seised of landes deuisable , doe deuise the same to the fellowe of a colledge , or the Priestes of a Chauntery , and there is no such Colledge nor Chauntery at the time of the death of the deuisor : & after such a colledge or chauntery is made , yet the deuise is void , because deuises are purchases , and when a man taketh landes or tenements , by purchase , 4. That the de●isee must be a person capable of the thing deuised . hee must bee an able person to take when it falleth to him by the purchase , Park . 97. Sect . 505. 9. H. 6. 23. 2. Eliza . 119. Pl. 18. Dy . 13. Eli . 303. Pl. 46. Dy & 300. Pl. 39. & 5. E. 4. 6. {per} Billing . and the Comminaltie of a guild , which is not incorporate by the kings charter to purchase lands , is not capable of land ; and if a man seised of lands deuiseable in fee , do deuise the same land to A. for life , to finde a Chaplein Chaunting in the Church of Dale , the remainder to two of the best men of the Guilde or fraternitie of Whittawers in London to find a chaplaine &c. if the Whittawers bee not incorporate by the Kings charter , & enabled to purchase , this remainder is void : Park 98. sect . 510. 49. E. 3. 3. and if a rent be graunted for life to I. S. the remainder in fee to him that shall first come to Powles the next daie in the morning , this remainder is good though it be vpon condition , if I. S. die not before the next daie , and if one come to Powles the next daie in the morning , if hee which cometht hether then be not a person disabled to take by the graunt , 30. assis pl. 47. Perk . 13. Sect . 56. so that whereas you say that by your Lawe it is sufficient that the deuisee bee capable at the time of the death of the testatour , 5. That by the Common law the deuisee ought to be capable at the time of the death of the deuisor . so it is likewise by our lawe : for though a man may not graunt nor giue landes to his wife during the couerture , because they both are but one person in lawe , yet by custome heretofore , which the Common lawe did fauour , and now by statute , hee might or may deuise his landes to his wife to haue in fee simple , or otherwise , because such deuise taketh not effect till the death of the deuisour , Littl . lib . 2. c . 10. Sect . 8. 27. Assis pl. 60. and then they are not one person . 24. H. 8. Br. Deuis . 34.

Nomom .

Now let me know what things may be deuised .

Codicgn .

1. That by the Ciuill law all such things may bee deuised as the testato hath in his owne right at the time of the deuise . Whatsoeuer things the testator hath as in his owne right , ff . de legat . 2. l. vinum §. si rem tuam . & if he happen to deuise a thing , which is not his owne but an other mans , the executoris by our Law compellable to buy it , and to giue it to the deuisee by vertue of the will , or if the owner will not sell it , hee ought to pay the very value and full estimation of it to the deuisee , ff . de legat . 3 l. dubium §. vlti . and if lande bee bought by the deuisor , for which hee hath not payed any money , or not all the mony , if hee dyed , and the deuisee will haue the land , hee must pay the money , and so inioye the land , L. 39. §. Idem Iulianus de legat . 1. but if the deuisour haue solde lande , and hath not receiued the money , and he deuiseth the lande so solde to I.S. the deuisee in this case shall not haue the land solde , but the money that is to bee payed for it , for an argument is rightly drawne ab augmento ad diminutionem , L. si ex toto eo . Tit . so that this conclusion may bee made , is the thing bought due to the deuisee ? then the deuisee ought to pay the money : is the thing not solde not due to the deuisee ? then hee must haue the money that is to bee payed for it .

Anglonomoph .

In our Lawe the making of a Testament hath three parts , Inception , which is , 2 The three degrees of a testament by the common law . the writing of the Testament , Progression , which is the publication of it , & Consummation , which is the death of the party , and when after the deuise the deuisor purchaseth other lands , 3 A difference in the common law where a man deuiseth a thing whereof he is not seised particulerly , & by name , and where not . it cannot bee intended by any possibilitie that hee would haue them to passe by the deuise : for there is nothing contained in the will which doth purport such intent : but it was held in Brettes case , that if a man deuise land in certaintie , as the mannor of Dale , or white acre , and hee hath no interest nor possession in them at the time of the making of the will , and after the deuisor doth purchase it , in such case it shall passe to the deuisee , for then it shal be taken that his intent was to purchase it as it is said 39. Hen . 6.13 . & it was likewise said that the statutes of 32. and 34. Henr . 8. required that the deuisors should bee seised of the land deuised at the time of the deuise , for the words be Euery person hauing , or which after this acte shall haue &c. 10. Eli . Com̄ Brets case , per Louell & touts les Iust ' .

Nomom .

I pray you let me know more particularly what things may be deuised .

Codicgn .

4. That things which are not in esse at the time of the deuise made may be deuised . A thing may be deuised which is not in rerum natura at the time of the deuise , if afterward it may bee , as the corne which shall growe in such a soyle , or the lambes which shall come of his flocke of sheepe in such a field , Instit . de legat . §. ea quoque res , & ff . de legat . 1. l. quod in rerum . but if the testator doe deuise tenne quarter of corne comming of the corne which shall growe in such a soyle , or two tunnes of wine of his grapes in such a vineyard , or tenne lambs of such a flocke , though so much corne , or wine , or so many lambes doe not arise of the thinges abouesaid , yet the heire or executor is compellable by law to make them good integraliter , because he may seeme to haue mentioned the soile , the vineyard , and the flocke , rather by way of demonstration then by way of condition : l. quid testamento in prin. ff . de leg . 1. & l. Paulo Callimacho . § Iulianus Seuerus ff . de legat . 3. & l. Lucius ff . de alim . leg . but if the testator doe deuise certaine goods , or a certaine summe of mony to I. S. and in his life time after recouerie of his health , hee giueth the goods or payeth the money to the said I.S. now without any alteration of the deuise in the will , the executors shall bee discharged of perfourming the deuise after the death of the testator . l. Lucius Titius in testamento in prin. ff . de legat . 2. gl . in Clem . dudum . de Sepulture .

Anglonomoph .

It is said in our bookes that if a man which hath estate for life , 5 That the deuise of tenant for terme of life or tenant in dower , of corne growing at the time of their death is good or tenaunt in dower doe deuise their corne growing vpon the lande at the time of their death , this is a good deuise , and he in the reuersion shall not haue the Corne , 4. H. 3. Deuis . 26. But if a man seised of land in fee as in right of his wife , doe lease the same land for yeares to a straunger , and the lessee soweth the land , and after the woman dieth , the corne beeing not ripe , in this case the lessee may deuise the corne growing vppon the land , and yet this estate is determined , and it was certaine , but a thing non-certaine was the cause of the determination of it : 7. E. 3. 67. 7. E. 4. 17. Park . 99. sect ' 513. 10. E. 3. 29. And if a man bee seysed of lande in the right of his wife , and sowe it , and deuiseth the corne growing vpon the lande , and dyeth before it bee seuered , the deuisee shall haue it , and not the Wife : but otherwise it is of hearbes or meadowe growing vppon the lande , and not seuered at the time of the death of the deuisour . 7. Ass. pl. 16 : And if tenaunt in taile of lande lease the lande for life , and the lessee soweth the lande with Corne , and the tenaunt in tayle dyeth , and the issue recouereth in a Formedon in discender before the Corne bee seuered , the issue in taile may well deuise it , Park . Deuis . 100. sect . 520. and if a man which is seised of lande in fee , haue issue a daughter and dyeth , his wife beeing grossement enseint with a sonne , and the daughter entreth and soweth the lande , and after the sowing and before the seuerance the sonne is borne , and one of his nexte friendes entreth for him , yet the daughter may deuise the Corne growing vppon the lande , 19. H. 6. 6. And the Statute of Merton , which sayth that omnes viduae possint legare blada is but an affirmation of the common Law which was vsed in the the time of Kinge Henry the thirde aboue mencioned , in the beginning of his raigne : And so it is of other thinges future contingent , they may bee deuised well ynough , for if a man enfeoffe a straunger of his lande vppon payment , or non-payment on the parte of the feoffee , as if the feoffee shall paye vnto the feoffour twentie poundes at the Feaste of Easter nexte ensueing , that then hee maie retaine the lande to him and to his heires , and if hee doe not paie that then it shall bee lawefull for the feoffour to reenter , now if the feoffour make his will , and deuise the money when it shall bee paied to A. and dyeth before the daye of payment , this is a good deuise condicionally , that is , if the feoffee paie the mony to the executors . 12. E. 3. Condic . 8. For when the partie hath a lawefull and a certaine interest in a thinge , 6 That when the partie hath a certaine , & lawful interest in a thing he may leanse it , graunt it , or deuise it before the existence of it . hee may graunt , lease , or deuise it before the thing haue actuall existence , therfore the saying of Master Keble ( that worthy man ) is well to be marked , when hee sayth that the King cannot graunt any disme before it bee graunted by his Highnesse by Parliament , neither a wardshippe cum acciderit , otherwise it is of the amerciaments of his tenants in such a village , the wrecke of the Sea or catalla felonum , for hee hath an inheritance in them and a possession in law , but in the disme hee hath no interest before the grant . 21. E. 4. Abbot de Walth . case 45. {per} Keble .

Codicgn .

By our Law a man may deuise to one that he shall haue yearely xx . 7. That a deuise may be vncertai●e , but yet good in law , because it may by special meanes be reduced to certaintie . load of stone out of his quarrie in Dale , or three load of wood out of his groue or coppies in Sale , ff . de legat . 1. l. apud Iulian̄ § si quis . and if the testator do deuise one of his vineyards , one of his horses or one of his rickes of corne , it shal be in the election of the heire or the executor , what vineyard , what horse , or what ricke of corne he will giue him , so that he giue him not the very worst , but these which be indifferent . l. legato generaliter ff . de lega . 1.

Anglonomoph .

So in our law a man may grant , and therefore as I thinke if one deuise vnto another one of the horses in his stable , & he hath fiue in his stable , the grauntee may chuse which of them he will haue : and if a man grant to one xx . s . of rent charge , or xl . s . of rent charge , I may distraine for which of the rents I will . 9. E. 4. 39. 11. E. 3. Annuity 27. Park . Grants 17. sect ' 74.

Nomomat .

Let me aske you this question : The Testator hauing but one daughter , deuiseth by his will that 1000. li. shal be payd for the mariage of his daughters , meaning as well other daughters that should bee borne as her that is liuing : there is none afterwarde borne , the testatour dyeth , whether is the executor bound to pay the whole thousand poundes to the daughter that is liuing .

Codicgn .

I thinke hee is bound by Law to pay 1. That by the Ciuil law In●● Acresendi tak●th effect in legacies . the whole summe vnto her , l. qui qaurtā §. fin. ff . de legat . 1. for ius accresendi habet locum in legatis , d . §. fin. cum l. scq . & l. a Titio . ff . de verbo oblatio . and so if the testator do deuise that if he shall haue a daughter , the executour shoulde giue a C. li. for the marriage of his daughter , and two daughters bee borne , now the executor shall paie to euery of them a C. li. l. qui filiabus § fi quis ita . ff . de legat . and if the case bee , that the testatour doth deuise the sixthe part of his houses , of his landes , or vineyards to Sempronius , whereupon Sempronius demaundeth a sixthe part of euerie house , of euery farme , and of euery vieneyard , and the heire saith that these thinges cannot well bee deuided , but that he is readie to pay to the deuisee the verie value of euery sixthe parte , 2 Whether , when the 6. part of a thing is deuised the heir is compellable to deuide it by the Ciuil law , or to render the value . the question is whether the law regardeth this aunswere of the heire , and for this doubt wee haue this generall decision : if the thing which is so to be deuided , be indiuisible by the nature of it , or if it cannot bee commodiously diuided , the heire hath the choise to pay the value : but if it be deuisible then the law is otherwise . l. non amplius §. cum bonorum . ff . de legat . 1.

Anglonomoph .

As to your last case our law doth accord with yours , for legacies shal be fauoured and ordered as dower is , and if a woman haue title of dower to a house , a chamber in the house may be allotted vnto her , 3 That by the common law sometime there may be a seuerance of the thing deuised : sometime of the profits of the thing or of the aduantage . as the third part of the house or in allowance of her dower , but she shal not so be indowed of a milne , but shall haue the third part of the profit of the milne , because the milne cannot be seuered , and a woman may be endowed of a villaine ingrosse as to haue his seruices euery third day , and of an aduowson in grosse to haue the third presentment , and of the moitie of an aduowson in grosse to haue the sixth presentment , and a woman shall be endowed of a bailiwicke to haue the third part of the profite of it . 1. H. 5. 1. 45. E. 3. Dower 50. Na . Br. 7. 2. H. 6. 11. 13. E. 2. Dower 161. Fitz . na . br . 148 C. 150. G. 149. K. 148. C. 12. E. 2. Dower 157. 11. E. 3. Dower 85. 15. E. 3. Dower . 81.

Nomomat .

Let the case bee that the Testatour deuiseth to one a plotte of grounde , and speaketh nothing of the house which is built vppon it , whether shall the deuisee haue the house .

Codicgn .

By our Lawe hee shall haue the house , 1. That if a man deuise a plot of ground whereon a house is built the house also passeth . whether it were built before the Testament were made , or after , l. seruum filij § si arcae ff . de l. si arcae . ff . de leg . 2. and wee haue a rule in our Law , Quicquid plantatur , seritur , vel in aedificatur , omne solo cedit , radices si tamen egit .

Anglonomoph .

It is so likewise in our Lawe , 2. A house built vpon land en●ailed after the gift shal be recouered in a Formedon . for if a man giue lande in taile , and the donee buildeth a house vpon it , and dyeth without issue , the donour if he bee deforced from the land , shall demaund it in a Formedone per nomen messuagij . 32. H. 8. 47. Dyer .

Nomomat .

Put case the Testatour deuiseth to one a Deede or Instrument contayning a certaine debt , whether doth hee deuise the debt or no . l. seruum filij § eum qui chirographum de legat . 1.

Codicgn .

In that case the debt passeth , l. seruum filij § eum qui chirographum de legat . 1. but if tenne seuerall payments ought to bee made by the condition of a bonde , 1. That by the ciuil law when an especialtie containing a debt is deuised to one , the debt it selfe passeth . as suppose tenne poundes is to be payed yearely by tenne seuerall payments , and fiue yeares be past , and fiue payments made , and the testator deuiseth the summe comprised in the condition to I.S. in this case the deuisee shal not recouer against the executor the whole summe conteigned in the condition , but fiue pounds onely . d . l. seruum filij §. sed et fi nomen .

Anglonomoph .

● Master Parkins his opinion touching the deuising of an obligation is examined . Master Perkins , a man that writeth of diuers Titles of our Law , rather subtilly , than soundely , saieth , that if twentie pounds bee due to a man vpon an obligation or a contracte , which ought to be paid at the feast of Easter , and he deuiseth it to a straunger , this is a good deuise , if the money bee afterward paid : but if hee had deuised the obligation , or the counterpaine of the Indenture of couenantes , wherein the bond is conteined , the deuisee shall not vse an action vppon the bonde in his owne name , but he may giue or sell the obligation to the obligor , or to a straunger , Perkins 101. sect ' 527. but how bondes , or things in action may passe directly from one to another by way of graunt , or deuise , I cannot yet perceiue by any authenticke opinion in our yere bookes : for to say that the especialtie , or bonde conteyning the debt or duety , doth passe vnto the deuisee , though the debt doe not passe , as namely the parchment , ynke , and waxe , but not the summe conteigned , is as if one shoulde imagine , that a man roweth ouer the Thames in body , and yet remaineth at the Temple staires in soule ; for if the debtte beeing principall doe not passe , I cannot vnderstand how the parchment or paper , or the deede it selfe , being the accessorie can passe , for accessorium sequitur suum principale .

Nomom .

Resolue in this , if a man deuise to an other a horsse , a garment , or the like , & they perishe in the handes of the executour , whether is the executour bound by Lawe to make them good .

Codicgn .

In such case either the executor doth linger and delay the deliuery , or giuing of the thing deuised to him , to whome it was deuised , & then I doubt not , 1 That by the Ciuill law the executor is bound to make good the thing which perisheth through his default . but hee is bound to paie the value of the thing which perisheth through his default , or there is no default in him , and then hee is not to bee charged with the making of it good , l. cum heres §. fi . & l. huius modi , § si cui homo . ff . de legat . 1. and then the executour or heire may bee said to delaye the administratio of the legacye , when hee may speedilie performe it , and wil not but if hee be by the acte of a straunger hindered from executing the bequest , as suppose hee hath not the money readie which is deuised , or the deuise bee that he shall purchase another mans lande with the money of the deuisor , 2 That in some cases the time of performing legacies is left to the discretion of the Iudges and assure it to I.S. if hee cannot easilie compasse this purchase doing his best endeauor , the rigour of law is to be tempered in this case by discretion , and respite must bee giuen by the arbitrage of the Iudge . l. si domus §. in pecunia . ff . de legat . 1.

Anglonomoph .

In our law wee haue many cases , wherein they that are charged with the deliuery of a thing vpon some trust and confidence reposed in them , 3 That by the common law the executors are bound to performe the deuise in conuenient time . and the thing that should be deliuered perisheth through their default , they are enforced by lawe to make full amendes , for if a man be seised of lande deuisable in fee , and deuiseth by his Testament that his executors shall sell his land , and shall distribute the profits comming thereof to the vse of the poore , and the deuisor dyeth , if a straunger tender vnto them money for the lande , but not so much as the lande is worthe in their opinion , and they to the intent they may sell it more deere , deferre the sale for two yeres space , and take the profit themselues , nowe the heire for their longe delaying may enter , 4. A diuersity betwixt an obligee and a deuisee . and put them out of the land , 38. Ass. pl. 3. & 39. Ass. pl. 3. but if a man be bound in xx . li. to pay x . li . at the feast of Saint Michael , the obligee refuseth the money when it is tendered in pollardes , which afterward are embased , the obligo● shall beare the losse of the embasement , because hee must plead vncore prist , 7. E. 6. 83. Dyer . and yet the refusal was the default of the obligee .

Nomom .

Put case that a man deuiseth to one a bedstead , whether shall the deuisee by force of this deuise haue the curtaines of the bed .

Codicgn .

1 That things which a e accessorie do passe with their principal . The accessary goeth alwaies with the principal , and the curtaines therefore in this case shall passe with the bedstead ; l. liberorum § fin. & ibi glo . de legat . 3. so if a man deuise to one his land or his house , the arrerages due by the farmour or inhabitant from the death of the Testatour are payable to the deuisee , but not the arrerages before . l. praedijs . §. 1. ff de legat 3. l. Nomen . §. filio ex parte de legat . 3. And if a house bee deuised , the Bathe belonging to the house , and the orcharde also which belongeth to it doe passe , if from the house there bee a way to the Fathe or orcharde , for then they may well bee said to belong to the house and to be prouided for the benefite of the inhabitant ; l. praedijs in § balneas , & §. qui domum ff . de legat . 3. and if a man do by his last wil deuise land , & liue many daies after the testament made , & in his life time a myne of coale , 2 That a myne of coāle passe h with the land ●f it be iointly vsed with it , otherwise it is if it be seuerally vsed . lead or tinne is opened and discouered in the soile , then the testatour dieth after that hee hath vsed the myne iointly with the land , in this case the deuisee shall haue the myne , but if hee had demised for life , or for yeares , the myne to one , and the land to an other , so that they had beene seuered , and disioyned in particuler interest , then the deuisee should not haue had the myne , l. cum fundus nominatim . ff de legat . 2. but if the Testator deuise all his corne which hee hath in such a barne , and the deuisee beeing one of his houshold seruants , of purpose bringeth a greater quantitie of corne into the barne , the deuisee shall not haue this increase , because it grewe by the fraude of the deuisee . cum ita legatur in princ . ff . de legat . 2.

Anglonomoph .

As to your two last cases , deuises ( as I haue said before ) are so to be fauored as dower , and I thinke that if a man doe marrie a wife , and die seised of lande , and after his death a myne of coale is discouered in the ground , 3 That a woman shall bee endowed of a myne of c●ale discouered after her husbands death . and then the woman bringeth a writ of dower , shee shall haue her dower as well of the myne being parcel of the lande , as of the lande it selfe beeing the principall , 14 E. 3. Ad. measurement 10. 13. E. 1. ●tin : North . 17. Fitz . na . br . 149. C. and as to your other case where the corne in such a barne is deuised , & it is afterward increased , the deuisee shall haue no more corne then was in the barne at the time of the deuise , for it is as much as if hee should haue said ( al the corne which he now hath in his barn ) for words of the present tense which hath a present beginning and ending , may not be drawne either to a time past which hath had his beginning and end , 4. That words of the present tence in a deuise may not be extended to the future tense or to a time future which hath neither beginning nor end , and therfore if a man be bound to keepe the prisoners of the gaole of D. that they shall not escape , this shall extende onely to the prisoners which are in the Gaole at the time of the making of the bonde , and not to such which shall bee afterward in the Gaole , vnlesse it had beene expressely said which be , or shall be in the Gaole , 21. H. 7. 37. and so if the Queene grant to me visum franciplegij in omnibus terris meis , & feodis , I shal not haue viewe of frankepledge in any landes , but such as I haue at the time of the graunt , 38. H. 6. 10. so if a man be bound for the tenants of I.S. it shall bee intended of these tenaunts onely which I.S. hath at the time of the obligation made , 39. H. 6. 6. and if a man grant to another housewood and hedgewood , to be burnt in his houses in Dale , this shal not extend to houses which are afterward built , Temps E. 1. Common 28. and though Wilbyes opinion be , that if a man grant to another a way ouer his land with waines , and the grauntee hath no freeholde at the time to which he may haue carryage , yet if hee purchase freehold afterward , he may haue a way to it , and Hankeford seemeth to be of this opinion . 11. H. 4. 21. E. 3. 2. per Wilby 11. H. 4. 82. per Hanke . because in a generall grant there needeth to bee no naming of a certain freehold , yet in that very case dubito quid sit lex .

Nomomat .

Admit that a man deuise the profits of his lande for fiue yeares to I.S. the deuisee dyeth within two yeares next after the deuise , then the deuisour dyeth , whether shall the residue of the terme goe to the benefit of the executor or administrator of the deuisee . 1. That by the ciuill law if the deuisee of a terme die before the deuisor the executor shal haue the terme .

Codicgn .

Wee haue expresse authoritie in our Law that it shall . l. vxori vsu●●● § quaesitum 〈◇〉 v●u●●u le .

Anglonomoph .

Brets case which is very famous in our law is to the contrary : 10. Eliz . 46. Com . Brets case . but if a man deuise xx . li. to be payed yerely in 4. 2 By the common law a diuersity is taken where the deuisee dyeth in the life of the deuisor , and where after his death but before the legacy executed . yeres after his death to I. S. and dyed , & after the deuisee dyeth with in foure yeares , yet the executours of the deuisee shall haue the money or the residue of it by suite before the Ordinary in the spiritual Court , for it is a duty by the testament or deuise , 24. H. 8. Br. Deuise 27. 45. Condic ' 187. and an administrator may as well sue for that duety in the spirituall Court , as he may haue a writ of Couenant at the common law vpon the couenant made with the party intestate . Fitz na . br . 146. D. 2. Mar. 112.

Nomo .

What if the testator do say I deuise such a thing to God or to Christ , what is wrought by this deuise ?

Canonol .

The thing so deuised is due to the Church of the parish where the testator did dwel at the time of the deuise . Authent . de ecclesiast ' tit{ur} §. fi quis in nomine argu . l. quae conditio . §. fin ff . de cond & de monstr .

Anglonomoph .

In auncient times such deuises were good , and so was a fine leuied deo , 1. That by the ciuil law whe● a thing is deuised to God or to Christ , it shal go to the Church of the parish wh●re the Testator dwelt . & ecclesiae , but the lawe is now altered , Scir . faci . 18. E. 4. 12. 19. E. 4. 2. 4. 7. {per} Pigot in le cas de Prior de Merton . and in the one and twentieth yeare of King Richard the second a deuise of land was made to one for life , the remainder to another for life , the remainder to the Church of S. Andrew in Holborne , and this was adiudged a good deuise , 21. R. 2. Deuis . 27. but now such a deuise is made void by the statute of 23. H. 8. cap . 10. but before the statute it appeareth by the book of 37. 2. That by the common law , and by the statute of 23. H. 8 such a deuise is void . H. 6. that vpon a gift made to the parishioners of such a parish without naming them the Churchwardens might haue an action , 37. H. 6. 30. but thē the gift must haue bin of a personal thing , for of inheritance of land they cannot take to the vse of the Church , 12. H. 7. 27. but if a man in auncient time had giuen his landes or his goods Deo & Ecclesiae sanct ' Petr ' Westmonast ' this had been a good deuise , because the church is not the house , nor the walles , but the entier spirituall house , that is the Abbot and the Couent , and because they may take by such a gift it is good , but if the Abbot were dead at the time of the gift it is not good , because the Couent is not persona capax : 3. What is meant by a Church parochial accordding to Rolfes opinion . but a church parochiall by Rolfes opinion ( as to the endowement of it with lande ) cannot otherwise bee intended , but a house made of stones , walles and roofe , which cannot take by any gift or feoffement , and so it is of a Church conuentual which lacketh a soueraigne . 8. H. 5. 4. per Babi . & Rolfe .

Nomom .

Suppose that two testaments be exhibited to the ordinarie which were made in one day , containing seuerall summes to the same deuisees bequethed , whether shall they both be approued , and the legacies of both stand good .

Codicgn .

1. That by the ciuil law where two testaments conteigne in them seueral summes , that which conteineth the lesser shall stande but by the common law the later . These legacies only shall stand good , which do containe in them a lesser summe . l. Sempronius Procul . ff . de legat . 2.

Anglonomoph .

In our Law we haue a case , that if a man make a Testament , and in it hee maketh one only man his executor , and then he maketh another testament , and in it he maketh him and a stranger executors , and the first testament is proued , that only shall stand , 2. H. 5. 8. but by other authority the later onely shall take place , what summes soeuer the conteine . 4. H. 7. 13.

Nomomat .

Say that an oxe is deuised to one , & the oxe dyeth without any default in the executour , whether is the skinne or hide of the oxe due to the deuisee or no ?

Codicgn .

By our Lawe it is not due : l. mortuo boue : ff . de legat : 2. for the thing deuised , that is the oxe , 1 That by the Ciuil law if an oxe be deuised and he die the skin is not due to the deuisee did perish and was non ens before the skinne were taken off , and the skin was not taken from an oxe , but from a carcasse .

Anglonomoph .

It seemeth in that case , 2 That by the Common law , it semeth to be due , otherwise it should be if there had bin an exception of the hide . that the deuisee shall haue the hide , for it is parcell of the oxe , and the oxe was an entier thing , but if hee had giuen the oxe , excepting the hide , that perhaps would amount to a seuerance in law , so that the oxe liuing should haue belonged to the deuisee : but being killed the flesh should belong to the deuisee , the hide to the executor of the deuisor , and if a man make a lease of land , excepting the trees which growe vppon the land , the trees are seuered in Lawe , for hee hath no reuersion of them , and if he sell them and after the sale make a feoffement the feoffee shall not haue them because they were seuered by the vendition . 20. H. 6. 22.

Nomomat .

Put case that I.S. doe borrow a C. li. of I.N. and for the sure repayment thereof he bindeth all his landes and goods by recognisans of statute Marchant to the said I. N. after hee deuiseth all his landes to the recognisee and dyeth , the recognisans is forfeited , the recognisee bringeth an action of debt , & recouereth against the executors , & hath execution of the goods of the testator by Fieri facias , and then hee claimeth the land by vertue of the deuise , whether is his claime good or no ?

Codicgn .

1 That if the recognisor deuise all his goods to the reconusee , yet he shall haue execution of the land . I thinke hee may claime the land also , if it may not bee proued by circumstances , or directly , that the land was deuised vnto him in satisfaction of the debt , & vpon condition implyed that he should not alter the propertie of the goods by execution . l. creditorem ff . de legat : 2.

Anglonomoph .

I doe not perceiue any repugnancie in our Lawe to that which you haue said .

Nomomath .

If hee had made his creditour his executour in this case , what woulde then haue followed .

Anglonomoph .

2 That if the obligee make the obligor his executor the d●t is extinct . Then the debt had bin extinct : 11. H. 4. pl. 31. for if two bee bound to one in a certaine summe of money , and the obligee maketh one of them his executor , this is a release in law of the bond , and debt to them both , 21. E. 4. 81. so if one make his debttor and another his executours and die , in this case if the executor , who was not indebted suruiue , hee shall not haue an action of debt against the executour of his coexecutour , although the partie indebted did not administer in his life time : for the action was once extinguished and determined , for no action can bee brought but in the name of them both , 20. E. 4. 17. 21. E. 4. 3. 21. H. 7. 31. per . Fineux . but if one that is indebted make his creditour , and an other his executors , the creditour may haue an action , if he doe not administer , 8. E. 4. 3. per Brian . but when the testator is indebted to me , and maketh me his executor , I may detaine the goods for my debt : so that it seemeth that though the action be extinct in regard of the testator , yet the debt is still in esse in respect of strangers . 7. H. 4. 18. 27. H. 6. in Scire fac . 7. El. Com̄ Greysbrookes case 275.

Codicgn .

When the creditour maketh the debtor his executor , by the executorship the debt is confounded , and because of impossibilitie in Lawe , forsomuch as the executor may not bring an action of debt against himselfe being one , and the same person , the obligation therefore is by secret act of law disanulled . Philip . Deci . ad reg . iur .

Nomom .

Now I will put you a case , which is a common contingent , The testator ordaineth by his will that his daughters shall bee married by the appointment and disposall of Titius his brother , the testator dyeth , Titius also dieth before he hath disposed any thing of the mariage , whether may the mariage & the portion be arbitrated and disposed by some other or no , as namely by the executor of Titius ?

Codicgn .

I thinke the executor of Titius may well enough order and accomplish this matter according to the degree of the daughters , 1. That by the Ciuil law if a man ordaine by his will that his daughters shall marry by the appointment of Ti●●●s , that Titius his executor may dispose of the marriage . the wealthe of the father , and the number of the children . l. fi filiae parèr ff . de legat . 3.

Anglonomoph .

I thinke quite contrarie because there is a confidence reposed specially & incommunicably in the person of Titius , and there bee many cases in our Lawe to proue this assertion , Cesty que vse before the statut of 27. of king H. 8. did deuise that A.B. and C. his feoffees should sell his land , 2. That by the Common law where a confidence is reposed in certaine persons , it is incommunicaable to others . whereof they were seised to his vse . A. dyeth : it was helde that B : and C. could not sell the land , otherwise it had beene if hee had spoken generally of his feoffees , without naming them specially : 2. El. 177. Dy . Likewise a man deuised , that after the death of his wife , his land should bee sold by his executors together with the assent of A. and maketh his wife , and a stranger his executors and dyeth : the wife dyeth , A. dyeth , the authority of selling the land is fully determined and gone : 5. Eli . 219. Dy . and so it was held per curiam , that if a man did declare his will , that B. and C. his executors should sell his land and the testator dieth , and B. dieth : and C. maketh M. his executor and dieth , and M. selleth it , this sale is void , for the trust is strict : but M. Brudnell saieth that if a man deuise by his will that H. and N. his executors shall sell his land , and they refuse to be executors , yet they may sell the land , because they are named by their proper names : 19. H. 8. 9. But where the executors are not specially named for the sale of the land , there one of them only may well enough sell the land : for the case was , that a man did deuise all his lands to his sister , except one manor , which he appointed to pay his debts , and hee made two executors and dyed , the one executor dyed , yet the other may sell the mannour and pay the debtes per intentionem testatoris , the words of the deuise as touching the sale were generall ( which I appointe to pay my debts . 23. Eliz . 371. Dy . )

Nomomath .

I haue often heard , that a deuise shall be taken most largely , and beneficially for the profite and auaile of the deuisee , I pray yee let me heare some cases , which may confirme this vnto me .

Codicgnostes .

If the testatour doe deuise all his horses to one , 1 That by the Ciuil lawe deuises are for the most part construed for the deuises . all his horses and mares shall passe by the deuise , L. legatis . seruis . §. iunctis . ff . de legat . 3. and if the testatour doe deuise all his beastes , all foure-footed cattell , which are beastes of pasture , do passe by this deuise , D. l. legatis . §. pecoribus . and if a flocke of Sheepe bee deuised , the Lambes and the Rammes are conteined in the deuise , L. seruis legat . §. fi . ff . but if hee deuise his Sheepe , without saying his flocke of sheepe , his lambes do not passe , D. l. legatis . seruis §. ouibus . and if a man deuise his plough horses to one , and after the deuisor selleth the horses , and buyeth and vseth mares for his plough , and dieth , now the mares shall passe by the deuise , L. qui duos mulos . ff . de legat . 3. and if the testatour do deuise to one all his woolle ; all his woolle as well washed , as not washed , spunne as not spunne , & generally al his woolle which is not wrought into clothe is deuised , L. si cui lans . in princip . & in §. lanae . ff . de legat . 2. and heerein it differeth from lyne , because vnder the name of lyne , euen lyne that is wrought or linnen is conteined , D. l. si cui lana §. lino . so if a man deuise all his siluer to one , his siluer cuppes and all his other vessels of siluer doe passe , L. cum aurum . ff . de auro & argent . leg . in princip . & l. lana . §. fi . ff . de legat . 3. but no siluer coyne doth passe , L. Quintus . in prin ff . de aur . & argent . leg .. otherwise it had beene if hee had deuised all his siluer uer wrought or laboured , Ibid . for if the testatour deuise to one all his clothe which is in such a chefte , no garmentes nor apparell are conteined within the deuise , but onely the rude and plaine matter of clothe , because when marble is deuised the imageris of marble are not meant , but the grosse matter of marble , L. quaesitum §. illud fortassis . ff . de legat . 3. and if wood be deuised , onely wood fit to be burnt is comprehended in the deuise , but not timber , L. ligna . ff . de legat . 3. yet the testator his meaning is in these later cases to bee examined by circumstances . L pediculi §. labeo . ff . de aur . & arg . leg .

Anglonomoph .

And by our Law , the fauour of which is equally diuided betwixt the aduauntag of the deuisee , and the intent of the deuisour . Deuises are oftentimes amphated and extended by beneficiall construction for the helpe and profite of the deuisee if they be not repugnant to law : 2 That the Comon law so fauoureth deuises that it vpholdeth . equitie & the correspondence of reason , but if they bee repugnant , the Lawe then , as a Ladie iealous of her Iustice , doth vtterly frustrate , and make voide the deuises : That which I affirme shall by cases and examples better appeare : The L. Latimer did deuise to his Ladie and wife the third part of all his goods and chattels , and great question was made , whether this deuise should be intended of the third part of the goods and cattels as it should be after the debtes and legacies paied , or as it was at the death of the testator : and whether the third part of the debts due to the testatour doe passe by this deuise , but it was agreed by the Iustices , that by the woord ( vtensils ) Plate and Iewels do not passe , and if a man deuise to his daughter fiue hundred pounds , for and toward her mariage , and shee dieth before the mariage , by the opinion of the greater parte her executour shall haue the summe , otherwise it had beene if the wordes of the deuise had been ( to be paied at the day of her mariage , or at the age of 21. yeares ) and she dyeth before , 36. H. 8. 59. Dy . and 16. Eliz . A man deuised land to one so that he doe pay 10. li. and if not that it should remain to his house , prouided that the lands shall not be sold , but shall goe to the next of bloud being male , it was helde that this was an estate taile , and that these words ( shall go to his house ) shall bee construed to the eldest person of his familie , and these words ( being male ) shall bee construed in the future tense , and in many cases an estate may be limited in a deuise by implycation : as if a man deuise lande to one and to his heires males in fee simple , the remainder to the next heires males of the kinne , there is an intailement both in the first estate and also in the remainder , 16. Eli . 333. Dy . 2. Eli . 171. Dy . but where a deuise is contrary to Law , it is voide of effect : 3. That the Common law frustrateth these deuises which are repugnant to Law . for a man deuised land in London to the Prior & Couent of S. Bartholmewes , so that they pay to the Deane and Chapiter of Powles 10. li. yearely , and if they failed , then their estate to cease , and that the land should remaine to the Deane , and it was helde by Fitzh . & Baldwin Iustices , that this was a void remainder , because it could not be limited after an estate in fee , and as of a condition the Deane & Chapiter could not haue aduantage but the heire , 29. H. 8. 32. Dy . and so if a man deuise land to one in fee , & that if he dye without heire that then it shall remaine to another in fee , this is a voide remainder , because one fee simple cannot depend vpon another . 19. H. 8. 8.

Nomom .

What if the testator do deuise to his wife certaine land , whiles she should liue chastly , and she marieth , whether is her estate determined ?

Canonolog .

1. That by the Cannon law if land be deuised to a woman whilst she shal liue chastly , marriage is not implicatiuely prohibited . I thinke it is not determined , for though the words of the deuise do imply a condition , yet the condition is not broken , because matrimonium est res honesta , and therefore not to be imagined to bee within the intent of the condition . Authent . de nupt . in princ . 28. quaest. 1. ca. sic enim 33. q . 2. c 2. l. 2. C. de indict . viduit . toll .

Nomoma .

Yet it seemeth that the condition faileth , Quia coitus & castitas opponuntur , D. authent . de nup . §. quia vero . therefore it may seeme that she should lose the legacy aswell by marying , as by liuing incontinently .

Canonol .

But I thinke rather that she shall not lose the legacie , because there was no condition expressed in the deuise that shee should not marry , and therefore she cannot be said in marying to do against the will of her husband : but yet it may seeme , that if she had maried within a yeare after the death of the testator , she had broke the condition , ff . de iur . patron . l. adigere § fi . for doubtlesse otherwise , Mulier secundo nubens castitatem seruat . D. authent . de nup . §. fin. autem & idem Extra . de diuor . c . gaudeamus . in fin. l. mulier . §. cum proponaretur . ff . ad Trebel .

Codicgn .

2. That the Ciuil law , and Common law do fauour mariage . Our Lawe in such cases fauoureth matrimony , ff . de reg iur . l. In ambiguis & l. in testamentis eod . and where there is no condition prohibitorie expressed , the Law will not in such case intend it . In authent . hoc locum C. de secund . nupt .

Anglonomoph .

In our Law we haue a case that King Edward the sixth graunted to his sister the Lady Marie the mannor of D. as long as she should continue vnmarried , and this is admitted in our Law to be a good limitation but no condition , as hath bin before surmised . 4. Mar. 1. 141 Dy . ●7 . H. 6. 29 1● . Ass. pl. 8. 17. Ass. pl. 7. 3. Aff. pl. 9. & 6.

Nomom .

Let this be the case : the husband deuiseth to his wife the profits of all his goods , the question is whether the wife may take the profits by her sole authority , or by the appointment of the Iudge , or by the administration of the excutor .

Codicgn .

In our Lawe we take this difference : 1. That there is a diuersity in the Ciuill law where a man make●h his wife vsutructuariam of his goods , and where he deuiseth them to her . where hee maketh his wife by his will vsufructuariam of the goods , and where he doth deuise vnto her his goods : For where he maketh her vsufructuariam , shee may of her owne power take the profit and benefit of the goods , and she needeth not to expect or attend the curtesie of the executor : L. si habitatio . §. si vsus fundi . & l. fundi ff . de vsu & hab. But if hee deuise his goods , or the profit of his goods , or commaund and charge his heire or executor by his will , that they allow sufficient maintenaunce to his wife out of his lands or goods , now the woman is a deuisee , and she must take that which is deuised , by the hands of the heire or executor , or else sue for it by law . ff de vsufruct . legat l. patrimonij & l. si quis .

Anglonomoph .

By our law the power and authority of deliuering goods and chattels , 2. That by the Common law the administration of the goods & chattels of the testator doth appertaine only to the execu●●●● or putting the deuisee in possession belongeth onely to the executors , who must see debts paied before legacies performed : 37. H. 6. 30. {per} Prisot 2. H 6. 16. Perkins Testam . 94. D. S. Dialog . 2. 79 And therefore if a straunger take goods deuised to mee out of the possession of the executours , I cannot haue an action of trespasse for the taking : For it is not like to a gift of goods which is presently executed : and if a man deuise the fourth part of his goods to another , the deuisee may not seise the fourth part but hee must sue for it in the spirituall court , 27. H. 6. but if a man deuise a booke or some other thing to one for terme of life , the remainder to another for euer , if the executor deliuer the booke or the goods to the first deuisee , the second deuisee may seise them without liuery of the executor , for the possession of the first deuisee was the possession of them both , otherwise it is if the first deuisee hath the possession & die 37. H. 6. 30. : but if a man seise in another right then as deuisee , then hee need not depend vpon the deliuery of the executors : & therefore the case was 9. E. 4. that an Action of Debt was brought against one as executor in London , and the defendant said that the testator did giue vnto him certaine goods by his deed , & he shewed in particular what goods they were , the testator being at the time of the gift in the village of B. in the county of Essex , & that he suffered the goods to be in the possess . of the testator vntill his death at London , and after the death of the testator he tooke thē , absque hoc that he did administer as executor : and the whole court held that the Iurors ought to find this matter of the gift of the goods vpon pain of attaint 9. E. 4. 4● . , but where a man ought to take a thing by the deliuery of another , & he taketh it of his owne head , he is a trespassor : and therefore if a man grant to another an estouer of wood to be taken by the view , & deliuerie of his Baylie , if hee take it without the deliuerie of the Baylie , the grauntor may haue an action of trespasse against him , Quare vi & armis . 8. E. 3. 422.

Nomomathes .

Suppose that a legacie of mony is deuised to a man in regard of his wife , and the testator dyeth , whether may the husband in this case demaunde the legacie without naming the wife ?

Codicgn .

By our law the husband may demand it , 1. That by the Ciuil law the husband may demand a legacie due to the wife without naming the wife . without naming the wife . L. Titio centum . §. Titio genero . ff . de condit . & demonstr .

Anglonomoph .

I see little reason but that the husband only may demand it in his owne name , he being the sole deuisee : and the thing deuised being a personal thing : but if it had bin a real thing , and the wife had bin interested in it , then the law would be otherwise .

Nomoma .

I pray you put me some cases touching this difference , that I may better vnderstand your meaning .

Anglonomoph .

The writ of mesne , 2. That in the Common Law there is a diuersitie as touching bringing of actions in the wifes name where the matter of the writ is real and where it is personall . because it is in the realty , ought alwaies to suppose the husband & wife to be mesnes , 13. R. 2. Brie● 642. but in a writ of trespasse it hath beene held a good declarion , if the plaintife alledge that the defendant entred into his mannor of Dale though he haue nothing in the mannor but in right of his wife : for this is a personall wrong done vnto the husband 4. E. 4. 31. : and by Danbyes opinion the husband taketh the profites of the land in his owne right , Ibid . per Danby . so that it cannot be law , which is said 21. R. 2. that an action of trespasse for trees cut in the land of the wife must bee brought as well in the wifes name as in the husbands , 21. R. 2. Br̄e 933. and the contrarie is helde for Law , 6. H. 4. and 47. E. 3. because as M. Finchden saieth well , the husband onely may release the dammages when they are recouered , 6. H. 4. 1● . 47. E. 3. 9. per Finch . neither may Husseyes opinion 7. H. 7. bee admitted for Lawe where he sayeth that the writ may be brought in both their names 7. H. 7. 2. per Hussey . , & in an action of debt brought by the husband vpon an obligation made to him and to his wife , the Writt may bee brought in the husbands name only 12. R. 2. Br̄e 639. , and so where a Lease is made for yeares rendring rent by the husband and the wife of the lande of the wife , the action of debt must bee brought in the name of the husband onely 7. E. 4. 5. , howsoeuer 2. R. 2. bee to the contrarie that in a Writte concerning a chattell reall they may ioyne 2. R. 2. Briefe 37. , but where the husband is seised of a Seigniorie in the right of his wife , a man may not make conusans as baily to the husband , but as bayly to them both 12. R. 2. Auowrie 88. , but that is because the conusans and auowry in such case is en le droit 48. E. 3. 8. {per} Finch . : but as to such things which concerne the person of the wife immediatly , there the writ must bee brought in both their names , and therefore the husband cannot sue a writ of appeale for the rape of his wife without naming the wife 8. H. 4. 21. 1. H. 6. 1. 10. H. 4. Br. Baron & fem . 34. , and wheras they brought an action of battery for the beating of them both , 3. That where the wronge doth immediatly concerne the person of the wife , ●he w●fe must of necessitie be named . the writte was adiudged good for the batterie of the wife , but not as to the batterie of the husband 9. E. 4. 54. , and the husbande and the wife shall both bring an Action of Trespasse for the taking away of the goods of the wife before the marriage 21. H. 6. 33. : but in a Writ of Detinue of charters against husband and wife the declaration was vpon a trouer , and the Writ was abated 13. R. 2. Briefe 644. , but a Writ of couenant was brought by the husband and the wife , because the defendant leased vnto them lande for terme of yeres by deed , & afterward outed them , and the writ was awarded to be good , for if the husband die , the woman shall haue the tearme 47. E. 3. 12. , and in this case they were both parties to the couenant , and by the bookes of 6. E. 4. & 17. E. 4. an action of debt for the arrerages of a rent reserued vpon a Lease for yeares made vnto the husband and the wife shall be brought against them both , and so shall a Writte of Waste : for the wife cannot waiue the Lease during the life of the husband 6. E. 4. 10. 17. E. 4. 7. , and 8. Rich . 2. an action vpon the statute of Labourers was brought against husband and wife supposing that the wife had couenanted with the plaintife to be damsell or waiting woman to his wife for a yere , & that she departed out of seruice within the yeare , and the writ was awarded to be good being brought against them both 8. R. 2. Laborers 59. .

Nomoma .

No more of this matter , let me aske you farther , If the testator do deuise to one within age his maintenance to be giuen and allowed him by his executor vntill hee come to ripenes of age , how shal these words ( ripenes of age ) be vnderstood , whether of age of discretion , or ful age ?

Codicgn .

I think it shal be meant of his ful age : 1. That by the Ciuil law when maintenance is deuised to one till the ripene● of age , is intended of ful age . 2. The diuersities of ages by the common law . for that is the common intendment , & the authorities of our bookes do sway to that point l. Mela . ff . de aliment . & ciba . leg . .

Anglonom .

In our law though there be but two ages for the heire male namely , the age of 14. which is the age of discretion , and the full age which is the age of 21. yeares Litt li. 2. c . 4 Sect . 8 , & 9. , yet the heire female hath in our Law many ages , namely at 7. yeares to haue aide to be maried , and 9. yeares to deserue dower , and 12. yeres to consent to marriage , and 14. yeares to be out of ward : and 16. yeres for the Lord to tender vnto her a mariage : and 21. yeares to make a feofment or a deed which may bind her 35. H. 6. 40. , but by common intendment ripenes of age is fulnes of age : & ful age by constitution of our law is the age of one and twentie .

Nomom .

Then I know your opinion as touching this question , now let me demaund another . If the testator do deuise his mansion house which he hath in the parish of S. Andrew : and that hath some appurtenances lying in the parish of saint Giles , whether do these appurtenances passe by the deuise or no ?

Codicgn .

1. That by the ciuil law when a mansion house that is in one parish is deuised , the appurtenances in another par●sh doe passe by the deuise . The appurtenances do passe , and we haue good authority for it in our Law L patronus §. Sen pronio . ff . de legat . 3. .

Anglonomoph .

And me thinks the appurtenances being in another parish doe not passe by this deuise , for not to aid my selfe with ancient authority of law , it hath bin lately , fully , & vpon ample discourse of this very point ruled , that nothing shall bee said to bee appurtenant to a house , 2. That by the common law land cannot be appurtenant to land . saue onely the garden , the curtilage , and the close adioyning to the house , and no other lande , though other land haue been occupied with the house 23. H. 8. Br. Feofm . 53. ; for lande cannot belong to a house , because they be of seuerall natures : for the house is a place to inhabite , & land is a thing to be plowed , or sowed , or improued , & so cannot properly be appurtenant to a house : no more then one libertie may be appurtenant to another liberty of seueral natures as a warren to a leet , or a leet to a hundred 3. Mar. com . 168. Hilles case , per Walpoole , Rastal & Morgan . , and all the Iustices but ( Cooke who spake not to this point in Patridges case ) agreed that land cannot appertaine to a house , and this Mountague said was a ground in the law : but Hales there said , that a garden may containe 11. acres in quantity and by such speciall meane be parcell of a house 6. & 7. E. 6. Comm . 85. Partriges case . , this is sufficient to prooue that the appurtenances doe not in this case passe by the deuise of the house , without the authority of 27. H. 6. where it is constantly auouched , that though a man may giue an acre of land vnto me by the name of a carue , & a carue by the name of a Manor , yet by a deed of feoffement of a house , land cannot be conueyed as parcel of the house 27. H. 6. 2. .

Nomomath .

Ye haue remoued all the doubtes touching deuises which perplexed my mind : & we haue bin long in conference of this title , now from real things let vs passe to personal , in which I pray yee continue your paines according to your former diligence , and first yee are to speake of borowing and lending .

The eight Dialogue of Borowing and Lending . NOmomath .

I would knowe the perfit difference by the Ciuill Lawe betwixt Mutuum and Commodatum , I pray you Codicgn . let me vse your help herein .

Codicgn .

They differ in our Law many waies .

1. The difference in the Ciuill law be-ttwixt mutuum and commodatum . 1 That which wee call Mutuum , doth consist only in things which are consumed by the very vse , which consist in number , weight , or measure , as corne , spices , salt , and such like , Commodatum is that which by vsing is not spent , & as it is not deliuered by weight nor measure , so neither is it restored by weight or measure , as bookes , apparel , & the like . 2. In lending that which we call Mutuum , the very propertie of the thing lent doth passe , L. 2. §. appellata ff . si cert . pet . but wee do still retaine the propertie of that which wee call Commodatum . L. rei commodatae , cum l. seq . ff . commod . 3. That which wee call Mutuum is lent for euery vse ingeneral , as if the lender should say vnto him that boroweth , Vtare , fruare pro tuo arbitrio , sicut dominus , L. in re mandata . C. mandat . but Commodatum is lent for a certaine , and prescript vse , L. in commodato . §. sicut ff . commod . and if any man do vse it otherwise , he committeth theft . L. 5. §. quin imo ff . eo & §. placuit . instit . de oblig . quae ex delecto nasc . 4. If the thing which we call Mutuum be made worse or perish , hee to whome the loane is made shall not sustaine any dammages : otherwise it is of Commodatum , if through his faulte , defaulte , couin , or negligence , the thing lent doe perishe or become worse L. si vt certo §. nunc viden . vers . quod vero l. eum , qui in princ . l. ad eos , & l. argentum cum l. fin. ff . commod . .

Nomomath .

What persons may bee bound by borowing and lending ?

Codicgnost .

1. That particular persons , corporations and Churches parochial may be bound by contract of borowing and lending by the Ciuill law . Euery particular person euerie church being parochiall or conuentuall , In authent . hoc ius porrectum C. de sacros . Eccles . euery vniuersitie , comminaltie or corporation , L. ciuitas & ibi plene per Bartolum . ff . si cert . pet . yet with this restraint if the mony be conuerted to the vse of the City or Church Innocent . in C. c . 1. Ext. de pos . & per Ferrar . in form . libell . de act . hypoth . in glos . super verb . sub . ead . obligati . .

Anglonomoph .

Indeed thereto doth our Lawe accord , for before the dissolution of Abbeys and monasteries the successor of a Prior should haue been charged with an annuitie graunted by his predecessor , 2. That by the Common law Abbots , Priors and such religious persons might charge the house by their contract , and by recognisance . pro consilio impenso & impendendo without the couent where counsell was giuen in the matters of the predecessor , & of the couent , for so it was a thing which came to the vse of the house which must needes charge the successor 38. H. 6. 22. 39 H. 6. 21. , and it was said by M. Littl . 14. E. 4. that an Abbot or Prior by matter of record as by recognisance , might charge the successour , though nothing counteruaileable did come to the vse of the house , and he said that this hath been diuerse times adiudged , & he said that the cause was for that the couent cannot be party to such record , but only the Abbot , otherwise it is of Deane & Chapter , for the Chapiter may be party to a matter of record 14 E 4. Abbe 4. , and an Abbot might haue beene charged in a writ of debt vpon a loane of mony made to his predecessour which came to the vse of the house Fitz . N. B. 121. K. c . H. 6. 25. 22. H. 6. 64. , and an Abbot should haue bin charged by a Writ of debt for vitaile and other things bought by his caterer , or manciple , or other officer deputed to make purueiance for the Abbey in time of vacation Fitz . N. B. 122. F. 25 , E. 3. 48. 26. E. 3. 55. 4. E. 2 Det 168. .

Nomomath .

Codicgnost . how many kindes are there of borowing and lending ?

Codicgnost .

Two : one that is called naturall , 1. Two kinds of borowing and lending by the Ciuil law naturall and ciuill . when the thing which is lent vnto A. by B. is deliuered vnto him by B. or by some other in the name of B. L. certi condictio in fin. l. singularia , & l. proinde ff . si cert . pet . & not . {per} Bartol . in l. §. appellata eod . titu . the other is called Ciuill which is onely contracted by the confession and acknowledgement of the partie , as when a man confesseth by word of mouth or writing , that hee hath had and borowed so much of such a one L. 1. 2. & 3. C. de non num . pecun . & Instit . de literat . oblig . in princ . .

Anglonomoph .

2. That the Common law acknowledgeth this difference in substance and effect . From this diuersitie our Law dissenteth not : for when a man lendeth to another money , and paieth it into his hands , or some other for him , which you terme a naturall lending , if this be vntill a certaine day , and the day be incurred , and the mony not payed , the creditor may sue an Action of Debt against the debtour Fitz . na . br . 119. G. , and whereas you say that a man by confessing that hee hath borowed so much money of such a man , may make himselfe a debtor , it is true and agreeable to our Law , for when a man maketh such a bill , namely this bill doth witnes that I. A. haue borowed so much mony of C. without saying more , this shal charge the executor aswell as an obligation : and the testator could not haue waged his law against this bill : or if it be Momorandum quod I.S. debet A. B. 10. li. or that I. S. acknowledgeth that he doth owe to A.B. 10. li. & this be by writing , & be deliuered as the deed of the party , this is a good oblig ' : for these words recepisse or debere : or teneri ad soluendum 20. li. or where a man reciteth , that whereas he borowed of I.S. 20. li. he hath paid vnto him 15. li. so that 5. li. remaineth to be paied , this is a good obligation , & shal bind the executor : for euery word which proueth a man to be a debtor , or to haue a strangers mony in his hands , though it be by bil , yet it shall charge the exec ' : As if a bill be made which witnesseth , that I haue found 20. li. belonging to I.S. without other words , I shall be charged , & shall be outed of my law 28. H. 8. 20. Cores C. per Fitzia . & Mounteg . .

Nomomath .

Let me know now whether vsurie , or lending for interest , be prohibited by your Laws yea or no ? and me thinkes ( to speake by way of obiection ) that it should not , for first it seemeth nor repugnant to the law of nature or to naturall reason , 1. An vsurious lending , or lending of mony for inte est , is by way of obiection maintained . because reason enforceth and nature mooueth vs to this , that wee should do well to them that haue done well to vs , otherwise wee might incurre the fault of ingratitude , which drieth vp the very fountaine of liberalitie , and besides by the Law of nature it is lawfull for euery one to lend of his owne as he list , and to receiue for his owne as it pleaseth him : and it seemeth to bee permitted by the Lawe of God when it is said : Ego veniens cum vsuris exegissem illud , Luc . 19. and so it is appointed in Deutronom . Faeneraberis gentibus multis , Deuter . 29. And hereto agreeth the opinion of Aquinas , 2. Aquinas his authority is vrged for proofe hereof . who writing vpon Ecclesiast . saith thus : Faenerare proximo tuo in tempore necessitatis illius : And againe : Redde proximo tuo in tempore suo . Multi quasi inuentionem aestimauerunt faenus & praestiterunt molestiam suis qui se adiuuerunt . Donec accipiat osculatur dantis manum , & in promissionibus humiliat vocem suam , & in tempore redditionis postulabit tempus , & loquetur verba taedij & murmurationum , & tempus causabitur Aquin . in Ecclesi . c . 29. : And surely me thinkes it is a point of brotherly loue to lende vnto a needy brother a competent summe of mony , so much as will serue him for a reasonable surplusage of increase .

Cononol ..

3 The obiection is answered ●ed by the Comonist . Vsurie may well be called the diuels charitie : for as the diuell cannot do any good howsoeuer hee would seeme to do it , because it is against his nature to do any good thing : so his charitie howsoeuer it may seeme to do good , yet in truth cannot performe any good thing , because the nature of it is opposite to al goodnesse , being by Cato resembled to murther , by the Canon law to theft : Ca●si quis vsuram : l. 4. q . 4. yet it maketh some shew to do good , but so as if a man were troubled with a burning ague , and greatly inflamed in his bodie , should in the extreamitie of his heate aske a cuppe of single beere of one that standeth by , & & he reacheth it vnto him , this cooleth the heate for a time , and the sicke man thanketh him for it , but when the disease doth reuert vppon him , and his fittes grow worse then they were before , and hee perceiueth that the drinke which hee drunke hath two much inflamed him ; then he beginneth to complaine of the hurtful courtesie and pitie of the other man : so when the vserer lendeth mony at the first , hee that boroweth it thanketh him and thinketh himselfe deeply beholding to him , but in the end when hee findeth that his goodes decrease , and his dettes increase by the vsurers kindnesse , when not onely pot and panne , but euen garmentes and iewels must bee either gaged or sold to satisfie the vserer , & when they perceiue the Bee that had a flower in her mouth to haue a sting in her taile , then ( that is to say ) too late they finde that vnder this baite , lyeth a hooke , vnder this charitie , crueltie . And as to Aquinas his opinion of this matter quis tumidum guttur miretur in Alpibus ? 4. Aquinas his authoritie disproued . and who will wonder if Aquinas patronize an errour in diuinity ? yet hee defendeth it strangely ; for he holdeth in the very same place , that it is prohibited by the law of God , and yet that it may be tolerated in a politik respect , is not this Theomachein ? is not this to permit vnto flesh and bloud , which the spirit of God hath forbidden , but to answere you more particularly : First , vsurie is against the lawe of nature , because it is against the law of nature that money should ingender money , and against the Lawe of God , in which it is said : Si pecuniam mutuo dederis pupillo meo pauperi , non vrgebis eum quasi exactor nec vsuris opprimes , Exod . 22. and againe mutuum date , nihil inde sperantes , and by our law it is flatly forbidden . 14. quest 4. ca. 1. cum sequent . & in Clem . 1. de vsur . Authent de Eccles . Tit .

Codicgn .

So it seemeth by our Law which in this professeth it selfe to imitate the Canon Law for the Emperor saith of this matter , 5. The Ciuill law in condemnning vsurie agreeth with the Canon law leges non dedignantur imitari sacros Canones , and he commandeth the foure generall Counsels to be obserued , wherein vsurie is forbidden . l. 1. C. de sum . trin . & fid . Catholic .

Nomom .

But Anglonomoph . I thinke your Law doth wincke at vsurie if it take but after the rate of x . li . in the hundred .

Anglonomoph .

It winketh at it as he that shooteth in a Caleeuer at birdes , 6 The common law in this ag eeth with ●oth other Lawes . who winketh with one eye and woundeth with the other , so our Law seeth not when the vsurer letteth forth his money to interest , but when an information is exhibited against him then it seeth the fact , condemneth the fault , and punisheth the offendour : and though he take but after the rate of 10. li. in the hundred , yet he shall forfeit the full value of the interest , and worthily truely doth the statute note vsurie with termes of disgrace censuring it to be vice , increasing by corrupt shifts , to the importable hurt of the common wealth . 13. El. ca. 8. vsurie 8.

Nomomath .

Ye haue in this point satisfied me now , I will further proceed in questioning , Suppose that a man lend money to another , and the other would repay it in some kind of coine is debased , whether is the lender bound to take it ?

Codicgn .

The change of money may happen two waies , for either it may bee chaunged in respect of the matter , wherof it is made , as if in stead of siluer , brasse-coine be vsed , or in stead of gold , siluer : for the auncient Germaines , as Tacitus reporteth , had siluer in greater price then golde , Tacit. de moribus Germonor . and in Pisana siluer money is of more accompt then golde , because the people of that countrie doe pay many tributes and taxes to the Pope , whose collectors and officers will not take any payment in gold , in Sparta yron-mony was only in vse , Polyb . lib . 6. Plutarch . in Lych . or els it may be changed in the value , as if a Floren , whi●h was worth 4. li. to be debased to 3. li. for in the value of mony , neither the matter nor forme is respected , ● . A diuersitie in the Ciuill law when money is tendered at the day of payment , and is after embased , and when it is tendered after . but the determination of the Prince , wherefore Aristotle said well , that mony is not censured by nature but by law , & is of such value , as the law published of it doth determine , Aristot . lib . 5 Ethic . which Galen likewise sheweth , Galen lib . 2. de puls . diff . in both these cases if the debasement were before the day of paiment the debtor may pay the det in the coin embased , Argum : l. vinum , & l. quod te : ff . si cert . pet . but if it were after the daie of payment then the law is otherwise , because he payed it not in due time . arg . dictae . l. quod te , & l. vium .

Anglonomoph .

To that reason our law seemeth likewise to incline . 7. E 6. 82. Dyer . 2 To the aforesaid diuersitie the common law seemeth to agree

Nomom .

If a man borrow money of one , and procure one to become surety for the repayement , whether is hee that boroweth the money discharged of the payment , or else charged as principall ?

Codicgn .

Though the suretie in our Lawe bee tearmed Fideiussor , 1 That by the bond of the suretie the principal debtor is not discharged by the ciuil law . because alienam obligatione in suam suscepit fidem , yet the principall debtor remaineth still obliged : Hostiens . in summ : de mutu : & commod : & l. 1. C. de Const . pecun . and by intendement of Lawe the suretie ( as hee is a surety ) is therefore bound , because the principall debtor is bound . Ferrar . in form : lib : cont : plur : 2 That by the common law as well the one as the other may be sued .

Anglonomoph .

To that the Common Law agreeth , and that an action may be maintained as well against the one as the other . 44. E. 3. 21. per Mombr̄ .

The ninth Dialogue of the bailement or deliuerie of goods . and Chattelles NOmomat .

It remaineth now by the order of your conference , that you shoulde speake of the baylement and deliuery of goodes and chattels , in which I would haue you to bee very briefe , because I had rather be resolued in other matters belonging to the next title , whereof ye are to treate , wherein I shall stand in neede of more instructions : but because some doubtes touching the aforesaid title doe trouble me , ye shal giue me leaue to moue vnto you some two or three questions thereupon : what is that Codicgn . which in the Ciuill law ye do properly call depositum ? for I doe imagine that the true knowledge thereof will ease my minde of many doubts .

Codicgn .

1. The definition of depositum by the ciuil law . Depositum , is that which is committed to the credit and faithfulnesse of a man , to keepe safely to the vse of him that deliuereth it , to the ende that it may be restored , when he shall call for it , l. 1. ff . depos . vbi doct ' , & in l. quod seruns eod . & dict . l. 1. §. est autem , & §. penult . & l. Lucius eod . l. licet in fin. eod . and in the one is the propertie , in the other the trust .

Anglonomoph .

2. The nature and course of it a● the common law . To this our Law accordeth , for if a man deliuer goods & chattels to one to keep & he will not deliuer thē , he that deliuered them may haue a writ of Detinue against the other for these goods and chattels , and so if a man deliuer goods or mony to another in a bagge ensealed , Fitz . na . br . 138. A. or not ensealed , 18. H. 6. 20. or in a chest , or coffer , to deliuer to another and hee to whom they are deliuered will not deliuer them ouer accordingly , he to whom they should bee deliuered , may haue a Writ of Detinue , but if a man deliuer money to one being not in a bagge or coffer , to redeliuer to him , or to deliuer ouer to a straunger , in such case , neither he that deliuereth , nor he to whom the money , or goods are to bee deliuered , shall haue a Writ of Detinue for the money , but a Writ of Accompt , because a Writ of Detinue ought to be of a thing certaine , 3. A diuersity where a writ of Accompt , of Detinue , and of Trespas are to be brought concerning things deliuered at the common law . as of money in a bagge , or of a horse , or twentie kine , or such things in certaine , Fitz . na . br . 138. A. 7. H. 4. 13. 13. E. 3. Detin . 53. 6. E. 4. 11. 36. H. 6 9. per Wangef . & Billing . 5. Ma. 152. Dy . 39. E. 3. 30. 46. E. 3. 16. & if the baylie open the bag , in which money is deliuered , the party to whom the money belongeth may haue a writ of trespas , or Detinue at his pleasure , 21. E. 4. 36. or if he doe burne or consume the things deliuered vnto him , 33 H. 6. 26. per Litt . 20. H. 6.17 . So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a stranger , and hee deliuereth it without mencioning the condition , a Writ of Detinue will lye against the first Baylie , and no other remedie may be had , 9. H. 6. 37. per Curiam . and where I deliuer goods , and a straunger taketh them out of the possession of the Baylie , I may haue a Writ of Detinue against the straunger , or against my Baylie , 20. E. 4. 11. for my Baylie is charable into whose hands soeuer the goods do come : but if he deliuer them ouer to another , that bayly is not chargeable to me , but only for the possession . 12. E. 4. 12.

Nomomath .

Suppose that a man infeoffeth me of certaine landes with warranty , who retayneth all the deeds and euidences concerning the landes in his owne possession , whether may these deedes after liuerie made to me of the lands bee said to bee my depositum in his hands as a thing which I haue left in his handes , and whether will a Writ of Detinue lye for them at the common law ?

Codicgn .

They cannot be said to bee deposita in his hands , 1 That a thing cannot be said to be a depositum at the ciuil law , except it be deliuered to the party . because a thing cannot be said to bee depositum , except it be deliuered to the party , l. 1. ff . de pos . & ibi Doct ' . and if these writings , which you speake of , do belong to the feoffor , as I thinke they do , then they cannot be said to be deposita : for wee haue a rule in our law , that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur , and it is contra bonam fidem that the owner should redeliuer his goods ( in which he hath a propertie ) to another man . l. bona fides ff depos in fi .

Anglonomoph .

2. That by the common law feoffee of the land is to haue the charters when the feoffement is without warrantie : otherwise it is . when it is with warrantie . It is good to bee considered to whom these charters or deedes aboue mentioned do belong . The authoritie is very pregnant , that if a man make a feoffement of his land to an other by deede , the feoffee shall haue the charters concerning the land , though the feoffor doe not expresly giue them to the feoffee . 18. E. 4. 14. 9. E. 4. 53. 39 E. 3. 22. 7. H. 4. 7. 34. H. 6. 1. And if a man make a lease for terme of yeares , and after confirme the estate of the lessee in fee , and he to whom the confirmation was made dyeth , now his heire shall haue as well the deede of the lease for tearme of yeares , as the deede of confirmation , because that deede maketh the confirmation good , 9. E. 4. 53. Fitz . na . br . 138. K. and so where a gift is made to one for life , the remainder to another in taile , if the donour release all his right to the tenaunt for life , hee in the remainder cannot haue a Writ of Detinue for his release after the death of the tenaunt for terme of life : 9. H. 6. 54. But in the case which you haue proposed , because the feoffement is with Warrantie , so that the feoffour is bounde to Warrantie , nowe the feoffee shall not haue the charters concerning the lande , for so the feoffour might fayle of the maintenance of his warranty , and so if a man be infeoffed with warranty and after infeoffeth another with warrantie , the heire of the feoffour may haue a Writ of Detinue against a straunger in whose possession are any deedes or charters concerning the land , because he may haue aduantage of this Warrantie , Fitz . na . br . ibid . L. but let the feoffement or gift bee made without warrantie , it is cleere that the donee or feoffee may claime the charters concerning the inheritance de iure , and therefore if a gift of land be made to A. in taile , the remainder to B. in fee , and after A. dyeth without issue , B. shall haue the deede , 3. H. 7. 15. so if lands be giuen to two , and the heires of one of them by deed , now if the tenant for life die he that hath the fee simple shall haue the Writ of Detinue for the deede , Fitz . na . br . 138. F. for the deede runneth with the lande and is of the nature of the inheritance , and therefore a repleuin lyeth not for such charters , 4. H. 4. 7. 10. and it is said by Newton 22. H. 6. that hee in the remainder in taile shall not haue a Writ of Detinue against the tenant for terme of life , if he haue the deed specifying the remainder , yet he cannot haue a Forme done in the remainder , nor an Action of Waste without shewing the deede . 22. H. 6. 1. per Newt .

Nomomat .

Whether ought he to whom the goods be deliuered make them good if they be stolne & embeasiled from him or by some other mischance do perish ?

Codicgn .

He is not to be charged if the goods be lost by any casualty , 1. That the baylie is not to be charge . with the losse of the goods which happeneth merely casualtie . but onely in such case where there is default , deceipt , and couin , or apparant negligence in him . l. quod Nerua : & saeo : But . in l. in re mandata C. Mandati , & Instit . quib . mod . re . contra oblig . §. penult .

Anglonomoph .

If a man deliuer to me his goods to keepe , and I put them amongest myne owne , & they be imbesiled , I shal not be charged for the goods , 29. Ass. pl. 28. and if a man be bound to bring mee a summe of money and he is robbed of it by the way , he shall be by Law excused , 40. E. 3. 6. But 9. E. 4. he shall not be excused , vnlesse he vndertake to keepe it , and to bring it as he wil his owne goods , and then hee may plead this in discharge of accompt before auditors , but not in barre of Accompt , so that it appeareth by this Booke , that if hee vndertake generally to bring the goods , hee must bring them at his perill . But 3. H. 7. 9. E. 4 40. is that if the Baylie be robbed of the goods , he shal not be further charged , but if the goods bee taken away by a trespassor , whom the Baylie doth know , he shall bee charged ouer to his Baylor , because he may haue an action against the trespassor . 3. H. 7. 4. But 20. E. 4. it is said that if I. S. deliuer goods to one to keep , & a stranger taketh them out of his possession , I.S. may haue an action against him or against his Baylie , 20. E. 4. 11. but in that case if the goods be stolne from the Baylie , in the indictment of the felon the wordes must be bona I.S. in custodia talis . 7. E. 4. 14. Lamb . Eirenar̄ 494. & 495.

The tenth Dialogue of the forme of ordinarie proceeding in matters of Law . NOmomat .

It remaineth Codicgn . that ye should now speak of the forme and manner of ordinary proceeding in matters of Lawe , which because it dependeth wholly vpon the practise and custome of Courts , in which I haue imployed no great trauaile , nor obseruance , I must therefore request you to stretch your sinewes in this regarde , and not onely to argue , but open things vnto me , and be not angry with mee , if in the handling of these matters I bring ye from the hill , that is your high and intricate pointes , to the valley or plaine , that is to matters more plaine and easie , and againe from the valley to the hill , when I finde in my selfe strengthe of vnderstanding to ascende . First I pray you shew vnto mee what is to bee done at the commencement or beginning of a suite or action . 1 The things which are to be obserued of the plaintife at the beginning of a suit by the Ciuil law .

Codicgn .

Because in euery controuersie of law , there must be a plaintife and a defendant , it is not amisse nor impertinent to mention such things as ought to be obserued & regarded of the plaintife , when he draweth any man into suit : and they are three in number , the one concerning profit , the other necessitie , and the third vrbanitie . It is a point of profit or warinesse for the plaintife before he commence suit against any , to be well aduised and assured whether himselfe bee a lawfull person to stand in iudgement , and to demaund that which hee bringeth into question , l. 1. C. qui legit . person . standi in iud . hab. he ought likewise to be sure that hee haue a good cause of controuersie , or else in some cases he must be adiudged to pay the costes to the defendaunt : in other some hee must beare the losse of the charges of the suite , l eum quem temere ff . de iudicijs . likewise hee ought to beware , least hee drawe the defendant before an incompetent Iudge . 2. It is a point of necessity that the partie whome the plaintife sueth , bee cited , or summoned before : for against the partie not summoned , nor heard , nothing can bee determined , l. de vnoquoque ff . de re . iud. &c. 1. ext . de caus . poss . & {pro}prietat . 2 Citation is proued to be of the substance of the proceeding , contrary to the opinio in of some ciuilians . Citation ( as wee say ) is parcel of the Law of nature , Clē . pastoralis de re iud . therefore of necessitie the party defendant must be summoned , because in euerie action the iudgement hath a retrospect to the original , and to the summons ( and as wee say in plain tearmes ) to that part of the action which is de in ius vocando : Ext. de procurat . C. in nostra in fin. & l. prolatam C. de sent . & interloq . om . iud. otherwise the iudgment is erronious , Iusti . de offic . iud. in princ . & in §. omnem in authē . delitigios . Gloss . in cap prudentia . §. 1. de offic . de leg . because Citation is of the substance of the proceeding , for that is the beginning of the suit , howsoeuer some holde opinion that the suit is not begun ante litis contestationem , d . authē . de litigios . §. si vero a preside . l. apertissimi . C. de Iudic . before the appearance of the partie def . and the libel exhibited in Court , & notice taken thereof by the def . by some responsory acte , because ( say they ) post litis contestatione non potest forum declinari , ff . de iudic . l. 1 & 2. & C. de litis ●ontest . the iurisdiction cannot be auoided after the apparance & the exhibiting of the libel , & any kind of answere applied , but others hold in my opinion more agreeable to the truth , that it is one of the fundamentall beginnings of the suit , and one of the essentiall and formall parts of the iudgement , because the omitting of it doth frustrate the iudgement . l. de vno quoque ff . de reiud . & in c . 1. de caus . poss . & {pro}prietat . extra . 3. The other point is a matter of ciuilitie , or curtesie , because humanitie doth require that before any man do contend in suit , and do prepare and addresse himselfe ad experiendum summumius , that he friendly and mildely doe admonish him , with whom he is to deale , of his duetie , that if by faire meanes he may be won , the rigor of law may not be exercised . l. quid vberius ff . de seruitut . vrban . {pre}d . & l. debitores C. de pign .

Anglonomoph .

These cautels which your law prescribeth to such as enter into suit , 3. The cautels to be obserued at the common law in the commencement of an action . are not vtterly reiected of our law , for as to the two first which concerne profit & necessity , our law doth rigorously exact them : as to the other it is not against it , for it doth not forbid , nor hinder any man to bee courteous to another , but it being a science rather politike then mortall , doth more respect the Iustice of causes , then the courteous gestures of men , our law doth vrge men to deale well and honestly , & if they do otherwise it doth punish thē , but curtesie is a free , spontaneal & ingenious quality , to which no inforcement may be vsed , but I will first examine by your patience , how farre forth our law regardeth the abilitie of the person , which is to impleade another , and then by course will examine all the partes of your precedent speech , inquiring by our bookes howe they may sort , and be sutable to our law . First it hath beene receiued of vs as a currant rule from all antiquity , 4. Disablements in the person of the plaintife at the common law . that the defendant may pleade outlawrie in disablement of the plaintife , but if he doe imparle now he cannot plead outlawrie to the disablement of his person , but yet he may well pleade it in barre of the action , 32. H. 6. 3● 35. H. 6. 36. so in a Writ brought by one as sonne and heire to I.S. after imparlance the tenant cannot pleade to the Writte that hee is bastarde , or that hee is not heire , but hee may very well pleade it in barre of the action , 22. E. 4. 35. and so outlawrie is a good plea in barre of an Action of Debt : for by the outlawrie of the plaintife , the debt if it growe by especialtie is vested in the Queene , otherwise it is of an action of debt vpon a contract : 16. E. 4. 4. for in that case the debtor might wage his lawe against the debtee who is outlawed , and as it seemeth by 10. Henr . 7. the outlawrie goeth rather in barre of the Action , then to the Writ , for there it is saide , that where a man cannot pleade to the Writ , but by shewing of a matter in barre , there hee may shewe it and conclude to the writ : for in an action of debt a man may pleade outlawrie in the plaintife , and conclude to the person , and yet the matter goeth in barre , and hee may pleade it also in barre , 10. H. 7. 11. and conclude to the action , and after that a voucher is counterpleaded , and the tenaunt put to another aunswere , hee may notwithstanding plead that the demaundaunt is outlawed , 21. E. 4. 64. but after voucher the tenaunt may not plead to the fourme of the Writte , 5. E. 3. 223. and 32. Henr . 6. is verie plaine , that where a man pleadeth that the plaintife is an alien borne , or a villaine , or an outlawed person it is left to his choise , whether hee will conclude these speciall matters to the writ or to the action , 32. H. 6. 27. and though the defendant haue made an atturney in a repleuin , yet hee may afterward alledge that the plaintife is his villaine , 29. E. 3. 24. So 21. Rich . 2. in Assise brought by the husbande and wife against diuerse persons , the tenaunts sayd that the wife of the plaintife was entred into religion in the house of B. and there was a Nun professed , & demanded iudgement if she should be aunswered , and the Assise was adiourned into the common place , and a writ was sent to the Bishop to certifie , who certified that shee was professed , wherefore the defendants prayed that the husband and wife might bee barred for euer , and it was helde by the whole Court , that forsomuch as the plea did stretch onely to disable the wife of the plaintife , and if the husbande and wife had purchast ioyntly , that the baron should notwithstanding the disablement haue an Assise of the whole , but otherwise it is if the husbande and wife bring an Assise , and a feoffement or release of the husbande or the wife or of some auncestour of one of them bee pleaded in barre , both of them shall bee barred , therefore in this case it was helde that the iudgement ought not to bee that the husband should be barred , but by the aduise of the whole Court it was awarded that the husbande and the wife nihil capiant per breue suum , sed essent in misericordia . 21. R. 2. Iudgemnt 263. and in the thirde yeare of Henrie the sixth it was held a good plea to say that the demandant was an alien borne in Portugall , which is out of the Kings legeance with conclusion , sil serra respondu . 3. H. 6. 11 : and therefore master Theloall in his Digest of writtes well obserueth , that an exception taken to a writ propter defectum nationis , vel potius defectum subiectionis , vel ligeantiae is peremptorie , and that the action cannot bee reuiued by peace , or league subsequent , and that the King may graunt licence to aliens to impleade , and likewise that such aliens as come into the Realme by the Kinges licence and safe conducte may vse personall Actions by Writte , though they bee not made Denizens , and that Denizens lawfully made by the Kings graunt , and such Aliens borne which are within the expresse wordes of the statute of 25. of Edward the thirde , may vse Actions reall by originall Writte , Thelo . Digest de briefes li. 1. ca. 6. And where a man is excommunicated , and hee sueth an Action reall or personall , the tenant or defendant may pleade that the plaintife is excommunicated , and hereof he ought to shewe the Bishoppes Letters vnder his Seale , testifying the excommunication , and then he may demande iudgement whether he ought to be answered , Litt . lib . 2. ca. 21. sect . 42. but if the demaundant or plaintife cannot deny this , the Writ shall not abate , but the iudgement shal be that the tenant or def . shall go quite without day : because when the demandant or plaintife hath purchased letters of absolution , and they are shewed forth to the Court , he may haue a resummons or reattachment vpon his originall according to the nature of this Writ , Litt ' ibid . and whereas you say , that it behoueth the plaintife to be sure that hee haue a good cause of action least he pay the costes , that now by statute is made common Law , for by the statute of 23. H. ● The statute of 23 H. 8. of giuing damages to the defendant is compared with the rule of the ciuill Law . H. 8. it is enacted that if any person or persons , commence or sue in any Court of Recorde , or elsewhere , in any other Court , any action , bille , or plaint of trespasse vpon the statute of King Richarde the seconde , made in the fifthe yeare of his raigne for Entries into landes or tenements where no entrie is giuen by the Law , or any action , bill , or plaint of debt or couenant vpon any especialtie made to the plaintife or plaintifes , or vpon any contract supposed to be made between the plaintife or plaintifes , and any person or persons , or any action , bill , or plaint of detinue of any goods or chattels where the plaintife or plaintifes shall suppose that the propertie belongeth to them or any of them , or any action , bill , or plaint of Accompt , in the which the plaintife or plaintifes suppose the defendant or defendants to be their Baylife , or Baylifes , receiuer or receiuers of their Manor , mease , money or goods to yeeld accompt , or any action , bill , or plaint vpon the case , or vpon any statute for any offence or wronge personall , immediatly supposed to be done to the plaintife or plaintifes , & the plaintife or plaintifes in any such kind of action , bil or plaint after appearance of the defendant or defendants be nonsuted , or that any verdict happen to passe by lawfull triall against the plaintife or plaintifes in any such action , bill , or plaint : that then the defendant or defendants in euerie such action , bill , or plaint , shall haue iudgement to recouer his costes against euerie such plaintife or plaintifes 23. H. 8. c . 15. Rast . Dammages 6. . Likewise whereas as you say , that the partie plaintife ought to bee warie , 6. Suite must not be maintained before an incompetent Iudge according to the common law least hee cause the defendant to appeare before an incompetent Iudge , that agreeth fully with the common Lawe , for if a man doe sweare vnto me that hee will infeoffe mee of such land before such a day , if hee do not infeoffe me , I may not sue him in the Ecclesiasticall Court Pro laesione fidei , because the act which is to be done , is a temporall act and ought to be tried by the Common law , and therefore if the party be sued in the Ecclesiasticall Court for it , he may haue a prohibition Fitz . N.B. 43. D. , so if a man deuise to one lands or tenements deuiseable , the deuisee may not sue for these landes in the Ecclesiasticall Court , but if he make a deuise of goods or chattels reall as of an estate for terme of yeares , or of a warde , for such he may sue in that Court , Fitz . 161. F. and if a trespasse bee done vpon the gleabe of a beneficed parson , 7. The seuerall iurisdiction of diuerse cou ts i● described . this must be tried at the Common law 19. H. 6. 20. , but if the termor of certaine land doe deuise his croppe and dye , the spiritual court shall hold plea for this crop 8. H. 3. Prohibit ' 19. , but if a man sue in the spirituall court for a rent reserued vpon a lease for tithes or offerings , a prohibition lyeth , for this is a lay rent 44. E. 3. 32. , and a man may sue a prohibition directed to the Sherife , that the Sherife shall not permit , nor suffer the Queenes lay people and subiects to come to any place at the citation of Bishops ad faciendum aliquas recognitiones vel sacramentum praestandum nisi in causis matrimonialibus & testametarijs Firz . N.B. 41. A. but if a testament bare date at Cane in Normandy , yet it may be proued in England , & the executors may therupon haue an action 18. E. 2. Testam . 6. , & a testament shewed vnder the seale of the Ordinary is not trauersable 36. H. 6. 31. Park . Tit . Testam . : furthermore , if one which is of the Queenes houshold sue another , which is not of her Maiesties houshold in the court of Marshalsie , the defendant may plead to the iurisdiction of the court , and if the court will not allow this exception , he may haue a writ of Error , and the iudgement giuen in the Marshalsie may bee reuersed in the Kings Bench 18. E. 4. 22. 19. E. 4. 2. 4. 7. in Scir . fa . inter Prior . de Merron & Prior . de Bingh . per Littlet . , and if one of the Queenes houshold sue another of the same houshold , and the plaintife is put out of seruice depending the plea , the other may shewe this and abate the Writ , but otherwise it is if the defendaunt bee put out of seruice Lib . de diuers . des courts fol. 102. b . , and if a man bee impleaded in the common place for lands within the cinque ports , the tenaunt may shewe to the Court that the land is within the Cinque ports , and by this plea the Court shall bee outed of iurisdiction , but if the tenaunt do plead a plea in barre , which is found against him , so that the demaundant hath iudgement to recouer the land , this iudgement shall binde the tenaunt for euer Lib . de diuers . des courts 107. , and so it is of landes in auncient demesne , if a Writ bee brought for them in the Common place , if the tenaunt appeare and pleade in barre and take no exception to the iurisdiction , and the plea is found against him , so that the demandant recouereth , the tenannt shall not reuerse this by a Writ of Errour , because hee might haue taken in time , exception to the iurisdiction of the Court , and that should haue beene allowed Ibidem . , but the Lorde may reuerse this iudgement by a writ of disceit , and make the land auncient demesne as it was before Ibid . & 16. E. 2. Continuall Claime 10. 11. H. 4. 86. 7. H. 4. 44. 8. H. 4. 14. 17. E. 3. 41. 26. E. 3. 33. : now I come to the citation or summons of the partie defendaunt , 8. Th●t the summons of the pa●ty defendants is necessar●●y ●xacted by the common law . which you haue prooued to bee necessarie by the Ciuill lawe , and I will likewise prooue that it is by the Common Lawe necessarily exacted : In a Writte of Trespasse the Sherife returned Non est inuentus , wherefore a Capias issued that the Defendaunt might bee taken , who afterwarde came into the Court , and said that hee was sufficient , and might haue beene summoned , and prayed a Writte to make the Sherife to come to aunswere to the King , and to the partie for his false returne , and hee had it 31. E. 3. Processe 5● . , and in an attachment vpon a prohibition , the Sherife returned Non est inuentus , the plaintife prayed a Capias to another sherife in another Countie , but the Clerkes said that he ought not to haue any other processe then an attachment in the other Countie , because it may bee that hee hath assets in the other Countie 13. E. 3. Processe 34. , ( by which he may bee summoned ) and so 11. H. 4. it is said that in an action of debt or trespasse , a Capias will not lye against an Earle , or any of like estate , because it is to bee intended that they haue assets whereby they may bee summoned , and brought to their answere 11. H. 4. 15. per Hals . , and in a writte against P. and T. and A. the wife of T. by diuerse praecipes : in the summons A. was omitted , wherefore the writte abated 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6. 6. , likewise in a writte of dower by seuerall praecipes , the name of one of the tenants was omitted in the clause vnde queritur and in the summons , whereupon the writ was abated 12. E. 3. Brief 671. , furthermore if a man recouer in a writ of Waste by the default of the defendant , where hee was not summoned , 9 That by the default of lawful summons the ●roceeding of the plain●●e is frustrated by the common law . hee may haue a writ of disceit 19 E. 3. Disceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit . 56 17. E. 3. 58. Fitz . N. B. 98. b . 105. a. , & in this writ of disceit ( if there were two summoners returned vpon the writte , in which the summons failed ) if the Sherife doe return one of the summoners dead , yet the other summoner shall be examined : and if it be found that he did not summon the party , he shall be restored to his land 8. E. 3. Disceit . 7. 1. E 2. Disceit 48. , but if the summons bee returned to be made by foure men , whereas in trueth they did not execute the summons of the writ , as long as two of them liue , the tenaunt who lost in the writ may haue a writ of disceit Fitz . N. B. 98. D. , but if three of them dye , a writ of disceit may not be brought 35. H. 6. 46. , but an action vpon the case 1. H. 6. 1. , & in a Praecipe quod reddat against the husband and the wife , if at the grand Cape the husband appeare in person , and the wife appea●eth by Atturney , who hath a warrant of Atturney which is not sufficient , and therefore iudgement is giuen vpon the wifes default against the husband and wife , yet they may haue a writ of disceit , if they were not summoned 18. E. 2. Disceit 54. & 55. Fitz . N. B. 89. B , and how necessarie a summons is , may appeare very plainly by the booke of 7. H. 6. where in a Formed on they were at issue , and the tenant at the Nisi prius made default , & the demandant shewed how he was in prison in the ward of the Marshall , and praied that they would send for him to appeare , otherwise he would saue his default afterward by imprisonment , wherfore the court sent for him and he came . 7. H. 6. 38.

Nomom .

Ye haue spent a great deale of time in treating of the commencement or beginning of a suit or action : yet I desire to haue some further knowledge of the nature of a citation or summons , therfore resolue me ; when a man is summoned to appeare within 2. or 3. daies after such a return , whether shal the 2. or 3. day be accounted in the citation , so that then he that is cited may well enough appeare , when as in the one case one day is past , so that he doth not appeare within the 2. daies appearing first in the morning of the 2. day : in the other case 2. daies be past , so that hee appearing the 3. day doth not appeare within the three daies so that if hee will saue his default , me thinketh he should appeare the first day of al.

Codicgn .

1. That by the Ciuil law if a man be bound to appeare within tenne daies , the tenth day is taken inclusiue . This question is easily resolued , for if hee appeare within the two daies or three daies , it is clearely sufficient because the last day that is put in the citation , doth implie that he may defer his appearaunce vnto the last day , ff . de verb . oblig . l. qui ante Calendas & l. eum qui ita ff . eod . and though an appeale be to bee brought within ten daies after the iudgement , yet the last day is taken inclusiue , and not exclusiue : ff . de success . edict . l. 1. §. decimus . and if time be giuen to one either by the partie or by Lawe , that he may pay so much money within , or do or propound any thing de iure suo within 10. daies . or from hence vntil 10. daies , he may paie , do or propound the 10. daie without any preiudice or surcease of time . Instit . de verb . oblig . §. si in diem .

Anglonomo .

If a man bee bound to pay money infesto sanctae Trinitatis , if hee tender the money in the vigil of the Feast , it is not good , nor in the octaues , but the tender must bee made the very daie of the Feast , but if the paiment had beene limited on this side the Feast , or before the Feast , then it may wel be made in the vigil of the Feast 21. E. 4. 52. , and these wordes ab octabis sanctae Trinitatis must bee intended a 4. die octabis Trinitatis : and therevppon M. Brooke noteth , 2 That the first day and the fourth day of appearance are all one at the Common law . that to this intent the first daie and the fourth day , and all the daies meane are but one daie in law 21. E. 4. 43. Br. Iour . & iours en court . 57. , and therfore if after the day of the return of the writ of Capias , & before the fourth day which is ful tearm , the Sheriffe doth arest a man , this arest is not iustifiable , because the 1. day & the fourth day be alone day . 33. H. 6. 42.

Nomom .

I would not haue you to insist longer vpon this matter , but now shew vnto mee how causes are opened , declared & disclosed in your Courts , and how faults and wrongs are manifested to the Iudges .

Anglonomoph .

Al wrongs & offences are either priuate or publike , 1 A diuersitie of opening & prosecuting of priuate and publike offences at the Common law . priuate offences which are done by one man to the hurt of an other , are made knowne to the Court , & remedied by originall writte , bil or plaint : publique offences which are committed by the party against the Queene and Commonweale , are opened & punished by way of enditement and information , which is put in practise by common informers .

Nomom .

2 Exception is taken to informations vsed by common informers . The manner of such informing seemeth to me to be a very hard course of Iustice : for by that meane lewd persons are animated to terrifie & impeach poore simple men , and to bring them into danger ? for what mischief will they not do , when a reward is proposed vnto them ?

Codicgn .

It is true & our law doth generally disallow such proceeding , & therfore the name of a delator or informer is in our law accompted dishonest L. 3. C. de Iniur . : and therfore it saith expresly . 3 Many obiections are made out of the Ciuil law against common informers . Delatores inimici generis humani , maximum humanae vitae malum , & execranda pernities De Delatoribus C. lib . 10. & lib . 10. C. Theod . de petion . & vltro dat . & delat . . Plutarch calleth them , Impios , & dijs inuisos homines Plutarch . in Dion . . Tacitus calleth them Genus hominum publico exitio repertum , & paenis nunquam satis coercitum Tacit. lib . 4. Annali . & li. 2. & 4 histor . . The Romane Senate after the death of Nero demanded instantly , that such kind of men might bee punished more maiorum u , and these words ( more maiorum ) a● interpreted by Alciat and Faber , to be the most extreme punishment that could be deuised Alciat lib . 4. Parerg . c . 21. Faber lib . 2. semestr . c . 7. . In like fault & punishable after the same maner doth our lawe adiudge suborners to be , which do minister occasion to the informer , & do serue his turn in the prosecuting of his information L. 2. §. 3. & 4. l. 22. 23. 24. de iur . fisci . ff . Harmenop . li . 2. Tit . 15. & l. r . §. pen . Ad S. C. Turp . ff . . Against such suborners and informers sharp & seuere punishments were adiudged & established by Titus Sueton . c . 8. , Pertinax Herodia . lib . 2. , Seuerus Herodia . ibi . , Macrinus Herodi . li . 5. , Gordianus Herod . li . 7. , Aurelianus Vopisc . , Traianus Plin in Panegyr . these menne were in auncient time bannished vnto the Gaetulian sandes , 4 Punishents ordeined by diuerse Emperours against comon informers . which are in the remote partes of Affricke Martial . lib . 1. epigram . , and this sorte of men did neuer florish in the Romane common weale but vnder tirants , as namely Nero , Tiberius , Commodus , and the like , and therfore these exclamations were heard when they were dead , Delatores ad leonem , Delatoribus metum , Delatores de senatu , Delatoribus fustem . Lamprid . in commod .

Anglonomo .

Thus you deterr informers from their iust accusations by minatory speeches , vttered by male-contented persons , but as archers when they aime at a marke do often shoote beside it , so you disputing of this question , 5. Codicgnostes is charged by Anglonomophylax to mistake the point in question . haue spoken cleane beside the purpose , for the question is not whether some delators or informers be dishonest men , & intollerable in a common weale : for none will doubt of that : but whether no informers ought to be suffered in a good common weale : and these censurers of informers which you haue brought out of histories and out of the Ciuill law do onely respect , 6. He is likewise charged to mistake the Ciuill law in this point . and concerne such lewde persons , which by slanderous detraction do traduce and falslie accuse men of honest life and good report , throught the vile and corrupt desire of vniust lucre , whose informations Tacitus calleth Interpretationes , interpretations , that is a wresting to an ill sense of that which was well meant , or a misconstruing of that which was done without euill intent or conueyance Tacit. lib . 3. annali . : and Suetonius termeth them Calumnias slanderous accusations Sueton . Domiti . c . 9. , such men did not openly prooue , but secretly impeach the good name of others , as Cuiaci well obserueth Cuiaci . ad Paulum . , but none of your former speeches do touch these , which prooue directly and fully that which they alleage in their information , neither doth your law ( for I looke sometime into it ) punish such L. 8. 10. 12. C. Th. de pet & delat . l. 1. ad S.C. Turp . ff . , but if they doe not proue their surmises , they are worthily punished : & by the statut of 18. 7 The statut of 18. of our soueraigne Lady the Queene touching common informers is compared with the edicts of Emperours . Eliz . it is wel prouided , that if any such informer shal willingly delay his suit or shall discontinue , or be nonsuit in the same , or shall haue the triall or matter passe against him therin by verdict , or iudgement of law , that thē in euery such case the same informer shal yeeld , satisfie , and pay vnto the said defendant his costes , charges & dammages to be assigned by the court in which the same suit shal be attempted 18. Eliz . c . 5. Rast . Inform . 1. : & wheras you say that your lawe doth generally disallow such proceeding , by your fauour it is not so , for hee which by office is appointed and charged to informe , or by some other obligation of Lawe is bound to informe , & he which doth it directly for the profite of the common weale is allowed by your law to execute that course of proceeding L. 1. l. 2. & l. 6. Ad S.C. Turpil . ff . , furthermore in that you say , Codiegnostes his surmise that informations were not vsed in the best times of the Romanes is answered and confuted . that informers did neuer florish in the Romane common weale , but vnder tyrantes , it is not true , for in the times betwixt the 2. and last Carthagenian warre the Romanes did most excell in vertue , & were most renowmed for good example & desert as witnesseth Salust a great Iudge in matters of state , and in the manners of men , whose testimony S. Augustine neither doth affirme nor deny but qualifieth with this censure , Toto illo interuallo duorum bellorum punicorum tolerabilior infaelicitas fuit S. Augustin . lib . 3. de ciuitate dei . c . 21. : & Florus writeth agreeably to Salust : Hactenus populus Romanus pulcher , egregius , pius , sanctus , atque magnificus Flor histor . lib . 2.19 . I say in these happy times , or if you will in these last vnhappy times of the Romane common weale , certain informers were earnestly busied in courts which were thē tearmed ( as appeareth by Plautus Plaut . in Perse . , who liued in those times ) quadruplatores , because they had the 4. part of the forfeiture of the defendant Festus . if their information were true , & these were accompted al one , & in the same degree with delatores Vopisc . in Aureli . . This may suffice to infringe that which you haue deliuered , Codicgn . against informers . Now giue mee I pray you a little leaue to proue that informers are not onely tollerable in a well gouerned common weale , 9 It is shewed likewise that informations are expedient for the administrati●● of Iustice . but euen expedient & necessarie instrumentes for the good administration of Iustice : but alwaies I require in thē honesty , faithfulnes , & conscience , taking this to bee an infallible rule , that he can neuer be a good informer , who is not a good man . These qualities being in thē , & truth being the ground of their proceeding , I see no reason but that their paines should be recompensed & rewarded , sometime with the 4. part , somtime the third , sometime the moity of the forfeiture , which the defendant by diuerse penal statutes is to forfeit & incur : for by reward the spirits of a man are stirred vp & quickned : without it they linger , languish , & consume away , & why is reward due vnto such men ? The causes & reasons be many , without information there wil be hardly any punishment inflicted vpon many offendors , & sithence nothing is more acceptable to God , or beneficiall to the common weale , then that offendours shoulde receiue their proper & condigne punishment , al lawful meanes must be assaied to attaine to this effect , and what doth restrain men more from committing offences then a continuall feare of the informers eie to be cast vpon them , or his eares to be open for the harkning out of their offences : wherfore as the Huntsman doth bestow vpon his dogs some part of these beasts which he taketh & killeth in hunting , that by such inticements they may bee afterwarde drawne to pursue their pray fiercely & eagerly , so it behoueth a lawmaker diligently to hunt out the domestical lions & wolfes , and to allow some reward to the houndes of the Common weale , which informers are Plutar . in Lucul . : Conanus the king of Scots did make a law , that in euery great Church there should be a chest hauing some holes in the top , into which the informers might put in at pleasure their seuerall billes of information , wherein the fault committed , the place , the time , the witnesses and the parties accused were contained : then the Magistrate openeth the chest , bringeth the matter into question , and the guilty person being condemned the halfe part of the goods forfeited goeth to the informer : which Law is now put in practise , by them of Millaine Bodin . li . 4. de repub . c . 6. .

Nomomath .

You haue spoken ynough of this matter Anglonomoph . I desire greatly to know , whether if a man do alleage some impediment happened by the act of God , whereby he could not appeare , this be a sufficient excuse of his default in Law .

Codicgn .

Processe of contempt which we cal literas contumaciales , Defaults are dispensed with all by the Ciuill and Common law when they happen by the acte of God . are neuer addressed against such as be hindered by ineuitable accident , as namely when the place where the court is held is besieged of enemies , or when the plague is hotte in that place : for citatus ad locum non tutum non arctatur comparere De appel . extra . C. ex parte . & in Clem . pastoralis , & ibi glos . sup . verbo Notorium . de re iudicat . , & so it is if through great snow , or inundation of water the waies & passages be stopped and shut vp , in these and the like cases , the Lawe doth dispense with defaults , and therefore the matter of delaies is for the most part committed arbitrio iudicis L. 2. ff . de re iudicata . , who may take certaine notice of these things .

Anglonomo .

It is a receiued opinion with vs , that infirmity or the fall of a man from his horse whilest he was in his iourney , though the partie be by the fall in daunger of death , is no sufficient cause to saue a default , but the swelling and ouerflowing of waters is a good and sufficient cause , & so is an imprisonment 38. H. 6. 12. , for though the imprisonment do originally happen by the act of the partie , yet it is an impediment of apparance against his will , & it is a restraint imposed by acte of Lawe 3. H. 6. 46. : so that the partie is as it were by Lawe made corpus immobile , & therfore his default must needs be excused 4. H. 5. sicknes was held a good excuse to auoid an outlawrie 4. H. 5. Chalenge 153. Br. Sauer . de def . 45. , but M. Br. doubteth of that , because sicknesse may be feined , yet vpon the book of 4. H. 4. cited in the book called the abridgment of assises , because there malady was pleaded against outlawry & was admitted Abridgem . dassise . 48. , he beginneth to wayuer in opinion Br. Sauer de def . 48. , & therefore I may with more colour leaue it doubtfull .

Nomomath .

Which is the most common action in your Law Codicgnostes ?

Codicgnost .

1. The most common action in the Ciuill law is actio iniu●iarum , which is either ciuilis or praetoria . The action which is called actio iniuriarum , which is either ciuilis , or praetoria : Ciuilis , if a man doe assault another , or doe beat him , or doe enter into his house ff . de iniur . l. lex Cornelia . : in all other cases it is praetoria . But both kindes agree in this , that the fault and iniurie is punished Instit . de iniur . § penult . & ff . de iniur . l. iniuriarum . . And in the pursuing of it a man may deale either ciuilly or criminally , but one of the wayes being chosen , the other may not be entred into L. quod senatus . & l. praetor . §. 1. ff . de Iniurijs . , and if the partie bring ciuilem actionem iniuriarum , he shall recouer the dammages ff . Iniur . eod . l. Idem apud §. si quis seruo . : but if he bring praetoriam , he shall effect nothing thereby but vindictam , the punishment of the party which hath offended .

Anglonomoph .

This your speech tendeth to no other purpose as it seemeth , then to insinuate that such wrongs may be pursued by action or inditement , 2. Actions and enditements at the Common law are compared with Ciuill & praetorian actions . wherein our Law doth not any whit disagree . For if foure men enter into land , and one of them entreth by force , this is force in them all , and they may be impleaded by action or impeached by inditement 2. E. 3. 12. li. ass . 33. Crompt . I.P. 61. : but if a man enter by force where his entry is lawfull ( so that there is no fault in the matter of his title , but in the manner of his entry onely ) he shall not be punished by way of action , but by way of inditement 15. H. 7. 17. Fitzh . l. P. fol. 117. Br. Forcib . entre 11. 9. H. 6. 19. Fitzh . N. B. 248. , and so if the disseisor hold possession by force during the space of three yeeres , if the disseisie bring an action vpon the Statute of 8. H. 6. hee shal be barred by this matter pleaded , but otherwise it is in an inditement vpon that statute , which is the Queenes suit , and vpon such inditement the partie shall haue restitution , though he may not haue an action 14. H. 7. 29. per Fineux , Reade , & Tremaile . , and if the disseisie oute the disseisor with force , the disseisor shall not haue an action , but yet the disseisie may be indited vpon the aforesaid statute , and the disseisor shall thereby be restored 15. H 7. 17. Fitz . N.B. 248. .

Nomomath .

I would haue you to proceed Codicgnostes in describing vnto mee the forme of your action which you call actionem iniuriarum , that it may bee more certaine and manifest vnto mee .

Codicgnost .

I haue it here written in a booke , which I haue ready at hand .

Nomomath .

I pray you then read it as distinctly as you can : for I meane diligently to obserue the points and parcels of it .

Codicgn .

The libell standeth thus in the booke : 1. The libel of an action of iniuries is fully set downe according to the forme of the Ciuill law . Coram vobis clarissimo , magno , & potenti viro , &c. dicit ponit , asserit & quatenus &c. iustificare intendit Titius , quod ipso existente die 19. mensis Augusti proxime praeteriti hora tertia vel circa in arenis Nemansensibus ante ecclesiam S. Petri & in Comitiua plurium nobilium personarum pacifice conseruando , neminique iniuriam inferendo , superuenit ibidem dictus Sempronius reus , qui animo iniurioso ipsum actorem prouocauit , & incitauit per rixosas & iniuriosas allocutiones , & quanquam dictus actor ipsum reum dulcibus & placabilibus verbis refraenare & mitigare niteretur : dictus tamen reus semper magis atque magis insistebat , & iniurias prorumpebat , & in tantum quod in ipsum actorem talia verba , seu in effectu similia , bonorum nominis & famae ipsius actoris denigratoria , & infamatoria iniuriose protulit , dicens : Thou naughtie theefe , thou doest nothing but robbe , & quia dictus actor , talia sibi imponendo dixit , quod mentiebat ur dictus reus , non contentus de verbalibus iniurijs praefatis , ad reales , & facti injurias processit , & in personam ipsius actoris irruit , & cum pugno pluribus ictibus ipsum actorem in faciem percussit , liuores , & concussiones fecit , & alias iniurias plurimas intulit , quas quidem iniurias dictus actor mox illico & incontinenti ad animum reuocauit , & iterum reuocat , nolens tales & tam atroces iniurias sibi illatas fuisse pro summa mille librarum coron : quinimmo suadet tantum perdidisse , quam dictas iniurias sustinuisse , vel passus fuisse : & ad quam quidem summam dictas iniurias existimat , iudiciali tamen vestra semper taxatione salua . Quare ex his & alijs ex processu resultantibus agit dictus actor contra dictum reum , & petit per vos vestramque definitiuam sententiam pro suorum nominis & famae redintegratione , dictum reum ad publice dissonandum , profitendum , & declarandum , dicta verba diffamatoria & iniuriosa fuisse per eum inconsulto & contra veritatem dicta & prolata , & pro satisfactione iniuriarum dictarum , ad dandum & soluendum eidem actori summam praedictam mille librarum coron : iudiciali tamen vestra vt saepe dictum est taxatione salua , vna cum omnibus expensis factis & fiendis : de quib . dictus actor per expressum protestatur condemnari , condemnatumque cogiet compelli vijs iuris , et remedijs optimis : et alias petit in omnibus ius , & iustitiam sibi fieri & administrari , vestrum benignum , quod , quale , & quantum decet , officium humiliter etiam , loco actionis , si opus fuerit , implorando .

Nomomath .

This is a very long and circumstantiall libell , and to my vnderstanding , many exceptions may be taken to it , which you shall giue me leaue for argument sake , and for my more vnderstanding , in order to pursue . First when you say in declaring the words , 2. Exception is taken to the forme of the libell for vncertaintie . which are the original occasion of this action , that he spoke talia verba seu in effectu similia , me thinkes that should not be a good forme , for your libel being like to a declaration at the Common Law , should be certaine , and without ambiguous or equiuocall tearmes : but of this matter I require the censure of Anglonomophylax .

Anglonomoph .

Your exception is good , 3. The exception is approued by the common law . and maintenable by our Law : for in an action vpon the case brought for calling the plaintife false Iustice of Peace , vel his similia , these words his similia were ordered by the Court to be expunged or blotted out , by reason of the vncertaintie 4. E. 6. Br. Action sur le case . 112. .

Nomomath .

Your libell likewise displeaseth me in another matter , because if I conceiue aright , 4. Exception is likewise taken to the libell for mingling things of seuerall and diuers natures in it . you lay and alleage in your libell as the ground of your action things farre distant in nature , which it seemeth to me might very well beare two seuerall actions : for when as you say , that the defendant vttered these words ( thou naughtie theefe , &c. ) me thinkes , that of it selfe should beare action : and when you say further , that ( in personam ipsius actoris irruit , & cum pugno pluribus ictibus ipsum actorem in faciem percussit , liuores & concussiones fecit ) I thinke ( vnder fauour ) that these words of themselues require a seuerall and distinct action , and not such an action as lieth for vtterance of slanderous words .

Anglonomoph .

5. This exception likewise is main●ained by common law . Your opinion is good & sound in reason , and as for seuerall diseases there be diuers medicines , so for seuerall wrongs ( I meane such as are different in nature ) there should be seuerall Actions , lest the offering of these things ioyntly to the vnderstanding , which are different in substance , there arise a great confusion and disproportionable Chaos : Wherefore by our Law , if things of sundry natures be mingled in one action , and the action is good for the one and not for the other , in such case the writ shall abate as to that for which it was misconceiued : for example , in a writ of Trespas for breaking his close , and taking away certaine lambes , whereas the lambes were supposed to be tithe , and the close to be the Churchyard parcell of the Vicarage , brought by the Parson against the Vicar , it was held that the Court should be outed of iurisdiction as to the lambes , and the defendant should answere to the residue 13. R. 2. Iurisdict . 19. , and so in an action of Trespas brought against the Lord for breaking his close , and taking his horse vi & armis , it was ruled that the writ should abate for taking the horse , but not as to the breaking of the close : 48. E. 3. 6. For the Lord cannot iustifie the hreaking of his tenants close , 20. E. 4. 2. 7. R. 2. Briefe 6 ; 2. 8. H. 4. 16. 8. E. 4. 15. 10. E. 4. 7. So in an action of Trespasse for entering into a Warren brought by the tenant against the Lord of the soile , and for chasing there , & taking of conies the writ shall abate as to the entre into the warren vi & armis , and shal stand good for the remnant 3. H. 6 13. , & if it appeare by the writ or the declaration that the action will not lie for some things mentioned in the writ , yet the writ may be in force for the remnant , as in a writ of Wast , if a man assigne parcel of the wast in a thing which cannot properly bee said to bee wast , the writ notwithstanding shal not abate for the whole , and so a writ of Dower shall not abate for the whole , though the plaintife doe demaund Dower of something , whereof she is not endowable , 9. H. 6. 10. 46 10. H. 6. 5. So in a writ of Accompt brought against one as Bailie , if the defendant pleade to parcell that he was lessee for yeares , and not Bailie , this shall abate the writ only for that parcell 18. E. 3. 16. , and 8. E. 4. in a writ of Entre brought vpon the statute of 5. of King Richard the second for entring into a Mannor and into an aduowson , because the action will not lie for the aduowson , it was held by Lakin , that the writ should abate for parcel , 8. E. 4. 3. likewise in an action of Trespas brought by the husband & wife for a battery done to thē both , after verdict found that both of them were beaten , the writ abated as to the battery of the husband , & as to the battery of the wife they recouered their damages , 9. E. 4. 54. & it is said 11. E. 3. that a man may not alleage in a writ of Eiectment de gard , quod blada sua apud B. nuper crescentia messuit , & blada & alia bona &c. cepit , because proclamation lieth for the one , but not for the other , 11. E. 3. 471. but a man may haue a writ of Detinue of Charters and of Chattels iointly , 44. E. 3. 41. Briefe 583. because there one thing is the ground of the action , namely the deteiner , and so a man may haue a writ of Det , where parcell of the debt is due by obligation , and parcell by contract , because there the debt is the onely occasion of suit , 41. E. 3. Damag . 75. 1. H. 5. 4. & so in things of the like nature one writ may comprehend many wrongs , and therfore an action vpon the case was maintained for the hindering of the plaintife to hold his Leete , for the disturbance of his seruants and tenants in the gathering of his tithe , and for threatning made , so that the people &c. durst not come to a certaine Chappell to doe their deuotion , and to present their offerings , and for the takeing of his seruants and chattels , but in Adamses case it was ruled , that whereas an action vpon the case was brought for speaking these words ( you haue made a false record , I will make you answere where you dare not shew your face , and you haue sought my death ) the defendant as to the falsifying of the record iustified , because he did make a misentrie once into a rolle in a Court where hee was Steward , and as to the rest he pleaded non Culpable , and hee was found guiltie of the whole , and dammages were assessed to twenty pounds , and it was mooued for stay of Iudgement , that some of the words would not beare action , as namely to say ( that hee sought his death ) because that may bee by due meanes in Law : nor the other words ( that hee would make him answere where hee durst not shew his face ) wherefore because no action will lie for part of the matter alleaged , the assessement of the damages for the whole is not good , and therefore iudgement ought not to be giuen : to which it was answered that when words are spoken to the disgrace of a man , they cannot be otherwise vnderstood then in malam partem , and therefore to say to one that he hath beene laied of the pockes , is to be intended of the French pockes , and though action will not lie for some of the words which were vttered , yet it must be intended that damages were assessed for these words which are of effect to beare action : and this case hath beene adiudged that one called another very villaine and strong theefe , the defendant pleaded non culpable , and he was found guiltie to the damages of xl . li . though action doe not lie for the words very villaine , yet iudgement was giuen that the plaintife should recouer the intire damages : and so was iudgement giuen in the principall case 25. Elizab . Adamses case . .

Nomomat .

Well no more of this : 6. Another exception is taken for superfluous alleaging of the day and houre of the trespasse done . giue me leaue further to obiect ; what need you say in your libel die decimo nono Augusti proxime praeteriti ? for it is not materiall when a wrong is done , but mee thinkes it should suffice to alleadge that it was done , and therefore much lesse need you haue said hora tertia vel circa : againe , me thinkes your libell is too prolixe in setting downe the words and circumstances of the iniurie : and likewise you haue vsed too many words in describing the assault and batterie , which might haue beene briefly expressed by these wordes insultum in eum fecit & eum verberauit , neither doe I see the vse of these words pacifice conseruando , 8 Exeption is taken for saying nemini in iurtam inferendo . neminique iniuriam inferendo : For what if Titius the plaintife had beene fighting , with Seius a straunger , is it therefore lawfull for Sempronius the defendaunt in this case to assault and beat Titius ? and what need ( you say in your libel ) animo iniurioso : 9 Exceptio is likewise taken for vsing these wordes animo iniurioso being taken for a surplusage . for no wrong can bee done without an iniurious meaning , and the secret meaning must needs appeare by the open description of the wrong .

Codicgn .

Giue mee leaue to satisfie you in all these particular obiections , and to tender a reason of the allegations in the libel . 10 Codicgn . answereth the exceptions . The very day wherein the wronge was done ( to beegin with your first obiection ) is necessarily to bee sette down , that the defendant may haue certaine notice of the wrong : §. atrox . Institut . de iniur . and that it may appeare to the Court , that the iniurie was committed within the yeare &c. for a verball iniury is ended and ceaseth within the yeare &c. l. non solum . §. 1. ff . de iniur . and whereas you disliked the multitude of wordes in describing the wrong , surely the wrong cannot better bee described then by fulnesse of tearmes , which are aptte and significant to agrauate the iniurie , l. praetor §. fin. & l. vulneneris & l. si est questionis , & l. sed si vnus . §. quidam . ff . de iniur . and whereas you finde fault , because it is alleaged in the libell , that the plaintife did behaue himselfe peaceably nemini iniuriam inferendo : they are to very good purpose , for if the plaintife had beene a quarrellous , or contentious person , & had giuen some occasion of strife , the wrong might with more reason bee imputed to him , then the defendaunt , Glo . in l. ob . haec verba ff . de his qui no . inf . & in l. 1. §. cum arietes ff . si quadrup . paup . fec . and he cannot he said to haue done a wrong , who incontinently for his safegard after the same maner , whereby hee is assaulted doth defend himselfe , for when a man is assaulted by weapons , he may resist with weapons , l. vt vim . ff de inst. & iure l. si quis percussor . C. ad leg . Cor . de sicar . but if he do exceed measure in repealing iniury , as if being vexed with wordes hee resist with weapons , and by such resistance do beate or wound the partie , he that is so grieued may haue an action of iniury against him , l. sententiam §. qui cum aliter . ff . ad l. Aquil . & recouer damages : l. item apud La beonē . §. fi quis seruo ff . de iniur . and to prescribe some temper & moderation in the resisting of verbal & actuall iniuries , I remember a verse not altogether vnpleasant : Res dare pro rebus , pro verbis verba solemus , Pro bufis bufas , pro trufis reddere trufas : Things must be recompenced with things . buffets with blowes : And wordes with wordes , and taunts with mockes , and mowes . And to conclude , you seeme not ( with your favour bee it spoken ) iustly to reproue these words animo iniurioso , for they are expressed for difference sake , because if a man in iestingwise should strike an other or vse broad boward against him , this would not beare an action , because it was not done animoni iuriandi , sed iocandi : l. illud peraeque . ff . de iniur . & l. fi non conuicij C. c●d thus I think you are sufficiently quieted in opinion as to the doubts which you proposed .

Nomomat .

Nay verily I rest as yet doubtfull , and for the fuller clearing of my mind , I would haue Anglonomoph . to speake somewhat of these things out of the common Law , which in matters of declaration and pleading is very curious and exquisite .

Anglonomoph .

11 Anglo . particularly examineth & discusseth the exceptions . Truth and error are both equally beholding vnto you , for in some things by the censure of our Lawe one of you hath the vpper hand , in other some the other : for proofe hereof I will by your patience particularly handle euery of the foresaid obiections , which hath in it any colour of truth , as to the day of the moneth wherein the wrong is supposed to be done , I do not with Codicgn . think that in this case the very day necessarily ought to haue beene mentioned , because it is not trauersable nor material to make any issue , but it is sufficient ( for obseruing formality ) to set downe any day that is past .

Codicgn .

But with vs it is material , & if the day be not truly set downe , the defendant may take aduantage of it .

Anglonomo .

With vs it is not so , for as Newton saith 20. H. 6. the day in an action of Trespas and repleuin are not trauersable , for if the defendant iustifie at an other day after , he ought to say without that he tooke them before , 20. H. 6. 40. per New . & so 19. H. 6. in a trespas of battery the def . said that the plaintife did assault him at another time , then he hath declared , & that the hurt which was done vnto him came of his own wrong , sans ceo that hee was Cul{pre} before or after , & this ple he was enforced to pled by the court , 19. H. 6. 47. yet in some case the day and time for auoiding vncertainty , and that the Iury may more easily find out the truth is issuable , & therefore in an action of trespas supposing a batterie , the defendant said , that the same day , wherein the trespas was supposed , the plaintif and the defendant by common accord did playe together at cudgels , and the hurt which hee did vnto him was by that play , without that , that hee hurt him in any other maner , iudgment si action : To which the plaintife replyed , that the same day when they were departed , the defendaunt came vnto him and assaulted him , and beat him of his owne wrong , and the defendaunt reioyned that all the day and at euery time of the day by their common accord they played together , without that that he beate him in other manner , 12. R. 2. Barr̄ 244. And so in a repleuin of his beastes wrongfully taken , the first day of August the defendaunt auowed , because the plaintife helde the lande &c. of him by homage and fealty and suite at his Court at such a place , and because hee was summoned to bee at his Courte the fifth daie of the said moneth and yeare , and did not come he was amerced , and for the said amerciament hee tooke the beastes the twentith day of August , without that , that he tooke them the first day of August , and it was sayd by Markeham that this was no plea : for if you took thē at an other day before the presentment it is wrongful , wherefore you ought to say without that that you tooke the beastes before the twentith day : but issue was in this case taken , without that hee tooke them the first day of August , 20. H. 6. 40. whereupon Master Fitzherbert noteth , that the day in a writ of Trespasse or Repleuin is not trauersable , but where the speciall matter doth require it , Fitz . Repl . 7. and this hee seemeth to ground vpon 2. H. 4. likewise in an action of trespas for the taking of goods the 8. day of Aprill the def . said that the plaintife was possessed of them as his proper goods and chattels , and sold them to such a one who left them in the custodie of the plaintife , and after hee solde them to the defendant , wherefore hee tooke them at the time supposed , to which the plaintife replyed , that he was possessed of them vntill the defend . tooke them the 8. day of April as before hath been alleaged , sans ceo that the other solde them to the defendant before that day , and hereupon they were at issue . 2. E. 4. 16. b

Nomomat .

Well let this matter passe , what say you to the multitude of wordes vsed in the description of the wrong ? is that tollerable in your Law ?

Anglonomoph .

12 Anglo . Excuseth and defende●h the abund●nce of words in declarations and libels . Surely it is conuenient that the qualitie of euery thing should be apparanted by termes of efficacie , and it is better to haue a declaration too copious then carion-leane , neither is any thing more plausible to a good vnderstanding , then that words be ponderous & emphaticall , where the matter seemeth to bleed , wherefore Virgil in describing the loftie pace of the lusty and couragious horses , maketh his verse after a sort to gallop , & doth in liuely terms as it were present it to the eye , Quadrupedante putrem cursu quatit vngula campum . And Persius decently maketh his verse to rise & swell with the matter .

Torua Mimalloneis inflarunt cornua bombis .

But not to digresse from our purpose , in an appeale of mayhem , the wrong must bee in this forme , or the like set downe . Ioh . Nan propria persona sua hic instanter appellat W.G. de eo , qd cum idem querens tali die & anno fuit in pace dei et dominae Reginae nunc apud talem villam in tali comitatu circa horam sextam &c. ibi venit predictus W. vi & armis viz. baculis vt felo , insidiando , & ex insultu premeditato adtunc & ibid ' in dict'I . insultum fecit & adtunc & ibid ' cum quodam baculo precij &c. quem praedictus W. adtunc & ibid ' in manibus suis tenuit praedictum querentem super brachium dextrum felonice tunc percussit . per qd venae & nerui bracij sui praedicti restricti fuerunt ac sicci mortificati deuenerunt &c. Lib . de diuersit des Courts 115. Here you haue the Mayhem described from the beginning to the end in full termes : and yet euery of them , or at least almost all , so necessary , that if you take away one of these flowers ye mar the whole garland , and so in a writ of trespas for the hurting of his sheepe ( though briefes bee shorte comprehensions of things ) the wrong is fully set downe in this sort , Quare vi & armis centum oues ipsius A. apud T. inuentas cum quibusdam canibus fugauit , canes illos ad mordendum oues praedict as in tantum incitando quod per fugationem illam & morsus canum praedictarum oues praedictae multipliciter deterioratae fuerunt & magna pars ouium illarum fetus abortiuos fecit . Fit . n . b . 89. I.

Nomomath .

Well what say you to these words ( animo iniurioso ) whether are they needles or not

Anglonomoph .

These words carie sence in their foreheads : for they amount to as much as malitiose in our law and that ought to be set downe to distinguish it from iocose as Codicgnostes hath before verie well reasoned : and when the action soundeth to malice , the word malitiose or the like in substance is to be vsed , as well as when the action soundeth to disceit , the word fraudulenter or some equiuolent terme is of necessity to bee expressed .

Nomom .

Of these matters then I know what to think , and wil moue no other doubt or question of them : Now Anglonomophylax , because I think at the common law an action vpon the case conceiued vpon a slaunder doth most resemble this action of iniury before described , let me therfore know the forme of the declaration , which is fit for that action .

Anglonom .

13 The forme of a declaration vpon an action vpon the case resembling actione● iniuriarum . You haue conceiued in this a right opinion , and I will roundly shew vnto you the forme of the declaration whereof you spake , because it is verie plaine and much in vse , it is thus : W.C. queritur de P. L. in custodia Marr . pro eo viz. quod cum praedictus W. bonorum mominis ac fame ac honestarum conuersationis , gesture , & conditionis fuerit & vt verus ligeus dom . Reginae nunc , absque ●llo scandalo ac sine quacunque macula latrocinij , furti , falsitatis , vel cuiusuis alij criminis ac sine vllo scandalo earundem macular ' , & ab omnibus huiusmodi fallacijs dolis , et malis illesus , intact ' , et immaculatus a tempore natiuitat ' sue hucusque se gesserit , habuer ' et gubernauer ' et huiusm ' stat ' , conuers . et honest ' apud vicin ' suos et vniuns . fidel ' dom . reg . nunc subdit ' quib . id . W. cognit ' erat sine aliqua criminosa nequitia latrocinij furti & cuiuscunque insignis fraudis aut huiusmodi criminis hucusque immaculatus fuerit : praedictus tamen P. L praemissorum non ignarus , ex eius diabolica instigatione , & peruersa malitia , machinans statum , honestatem , necnon famam & opinionem dicti W. laededere , & funditus deprauare , ac eundem W. de tam malis conuersatione conditione & gestura , apud omnes dominae Reginae fideles subditos acceptare , vt idem W. omnino periret ac totaliter destrueretur ac vtvniuersi fideles subditi dictae dom ' Reg . a consortio ipsius W. penitus se subtraherent 25. die Septembris anno &c. apud L. in presentia & audientia A. B. & aliorum multorum fidedignorum dictae dominae Reg . eodem W. notorum , de eodem W. dixit , retulit , publicauit , & alta voce pronunciauit & asseruit in haec verba in Anglicis verbis sequentibus viz. Thou art a theefe and thou hast receiued xx . pounds of my goods : quorum quidem verborum propalationis & relationis pretextu , predictus W. de suo statu bono nomine et in negocijs suis : quibus cum honestis personis & dict' dominae Reginae subditis vsus fuit , & consortium habuerit multipliciter laesus , et deterioratus existit , vnde dicit qd deterioratus est , & damnum habet ad valentiam ducentarum librarum &c.

Nomomath .

These two proceedings doe little differ in substance , and there is in them me thinketh great redundancie of wordes , which might wel be spared , but tel me I pray you is there such necessity of these formall termes , that if they be wanting or changed , the declaration , or proceeding shall abate ?

Codicgn .

14 The cutting off of delaies by the Ciuill Law . Surely , because the tedious and odious protracting of suits did greatly offend iustice therefore to cut off delaies , and that suits might not be endles , & immortal ( for matters of forme and the exceptions to them were grown to such an excessiue heape and infinite number , that the whole age of man did scarcely suffice for the triall of one suit , & he that failed in a sillable failed in the cause ) our lawmakers therfore , that Iustice might walke in a shorter and more compendious way , did therefore verie willingly roote vp the thornie groue of cauilles , and sophisticall wranglings , which had mingled themselues with good and reasonable exceptions , and scouring the streame of such weedes and sedges , they haue now made a smooth & more easie passage for Iustice In rubr : & nigr : C. de form : & impetrat : action : Iublat : .

Anglon .

1● The diminishing of dela●es by the Common law . Vpon like consideration & to the verry same purpose our lawmakers haue made laws for amendement of writs , declarations , & other proceedings in matters of form , as may appeare by seuerall Statutes made for the establishing of such amendments , as namely 14. E. 3. c . 6. 9. H. 5. c . 4. 4. H. 6. c . 3. 8. H. 6. c . 12. & 15. 32. H. 8. c . 30. 18. El. c . 14. 27. El. c . 5. and by the equity & direct meaning of these Statutes , diuers amendements haue bin made and vsed in our law : and therfore in an action of debt grounded vpon a recouerie of damages had in an assise , the date of the writ of Assise was not put in the Writ of debt , and it was held that it should be amended , because the Clerke had the recorde for his instruction , 13. H. 7. 21. but whereas a writte of debt was brought per Iohannem Gargraue Esquire , and the obligation was Ioan Gargraue onely , this was not amended , but abated , because this misprision came of the plaintifes part , Quere tamen , but 8. E. 4. and 11. E. 4. if in an action of det the Clarke of the Chancerie haue the obligation with him at the time of the making of the writte , and there bee variance betweene the writte and the obligation , it is clerely amendable , but if no addition bee giuen to the defendant , that is not amendable , 8. E. 4. 4 11. E. 4. 2. and 22 Ed. 4. if an action of debt bee brought against executors of the debt of the testator , if the writte be in the Debet and Detinet , it is not amendable , 22. E. 4. 21. per Cur . and in a writte of Audita querela the surname of the defendant was Langawaite , and in the Indenture of Defeafance his name was Langwaite without the letter (a) in the middest , whereuppon the writte was amended by statute , because that was not of the substance of the name , or surname ; and also it was to bee intended that the Clarke had the Indenture of Defeasance at the time of the making of the writte , 21. H. 6. 8. and so in an action of debt , where the writte was Hille , and the Obligation was Hulle , the writte was amended , 22. H. 6. Amendment 31 37. H. 6. 32. and where more was in the Obligation then in the writte , it was amended , 19. H. 6. Amendment 47 but 41. E. 3. it is held by Finch . that a writte originall shall abate for default of forme , and shall not bee amended in the Courtes of common Lawe , for though it be pleadable there , yet ( as Master Statham reasoneth ) the Chauncerie is an other Court , and a superiour Court : Stath . Tit . Amend 20. H. 6. and therefore the things done there cannot be altered in Courts of common Law , 41. E. 3. 14. {per} Finch . 9. H. 7. 16. per Vauis . & 22. E. 4. 20. and for the more ful & forcible destruction of delayes & ambushes in pleading , it is by the common Lawe ruled , that euery demurrer vpon a plea which goeth in barre , and to the disproofe of the Title is peremptory : and thoughe a plea in Abatement of a writte be not peremptory , but a respondeat vlterius , yet if the plea in Abatement of a writte be tryed by the Countrie , that is doubtlesse peremptory for the delay of the party , 48. E. 3. 10. {per} Finch . 34. H. 6. 8. 50. E. 3. 20. 34. H. 6. 37. But it is peremptorie onely against the tenant or defendant , not against the plaintife or demaundant , for he is still at large . 5. E. 4. 90. 2. E. 4. 10

Nomomath .

Let mee interrupt you Anglonomoph . for I doe verie much desire to heare of you and Codicgnostes , the fourmes of the defences or barres , which the defendants are to make against these declarations , before recited by you .

Codicgn .

I will make knowne vnto you the most common and vsuall forme of pleading in barre in this case . 16 The forme of a defence or barre in an action of iniuries Vt vobis clarissimo magnifico &c. constet & legitime appareat de innocentijs , inculpabilitatibus , legitimisque defensionibus predicti Sempronij delati , preuenti , seu inquisiti , ipsumque ad malam , iniustam , dolosam , & iniquam nonnullorum suorum maleuolorum & inimicorum dolationē , instigationem , seu denunciationem fuisse preuentum , & in processu inuolutum , et per vos vestramque definitiuam sententiam dictus &c. delatus , seu preuentus , seu inquisit ' pronuncietur & declaretur innocens , exoneratus , & minime culpabilis sibi impositorum , vt ab eisdem impositis eadem vestra sententia absoluatur : dictus vero denuntiator in omnibus damnis , interesse , & expenssis erga eundem praeuentum delatum seuinquisitum condemnetur , condemnatusque ad refarciendum & soluendum cogatur & compellatur , & alias ius & iusticia eidem praeuento & intitulato fiat & administretur : Inprimis igitur dicit , ponit , asserit & quatenus opus erit , prout supra , iustificare intendit , quod ipse praeuentus , seu denunciatus ex nobilibus , catholicis , legalibus , probis , honestis , & in omni genere vertutis exercitatis parentibus , seu genitoribus , traxit originem . Item dicit & ponit , quod dictus intitulatus & preuentus vestigia dictorum parentum suorum insequens , toto tempore vitae suae , fuit & est catholicus , legalis , probus , honestus , absque eo & praeter id , quod Titius praedictus querens , de eodem intitulato seu praeuento aliqua laborauerit infamia , sinistra suspicione , aut mala fama . Item & quod semper pacifice , & quiete inter omnes se habuit & conuersatus fuit omnibus prodessendo , & neminem ledendo seu offendendo . Item negat se dictum Titium pulsasse , verberasse & ei vel cuiquam alteri via facti , seu dicti , seu alias nocuisse , & vulnera , liuores , vel concussiones intulisse , Ex quibus apparet dictum intitulatum seu praeuentum fuisse & esse a sibi impositis innocentem & minime culpabilem , indebiteque & iniuste intitulatum & preuentum , & in processu inuolutum fuisse , & per consequentiam in via absolutionis & relaxationis fore & esse .

Nomomat .

This barre is somewhat long , let me heare the forme of your barre Anglonomoth . which I hope is a great deale shorter .

Anglonomoph .

It is so , if you will haue the ordinary plea in barre which comprehendeth the generall issue . 17 The forme of a defence in an action vpon the case For it is no more then this : Et praedictus P. L. per R. attornatum suum venit & defendit vim & iniuriam quando &c. & dicit quod ipse non dixit , retulit , nec propalauit de praedicto W. verba praedicta &c. modo & forma quibus idem H. superius versus eum queritur , & de hoc ponit se super patriam & praedictus H. similiter &c.

Nomomath .

This is briefe and substantiall , but now what is to be done according to the order of your proceeding ;

Codcign .

18 The forme of triall by the Ciuill law . Now that the matter is growne to this ripenes , so that the one maketh perfite affirmation the other absolute deniall , the matter is to be tried by proofes & witnesses , which now are to be examined .

Anglonomoth .

19 The forme of triall by the common Law . So it is with vs : for the cause now being come to issue , the triall is to be by the countrie , which as to such matters in facto , are to bee directed by the testimony and euidence of witnesses .

Nomomath .

Well if the defendant happen to be found not guilty , what is then the iudgement vpon these precedents . 20 The forme of iudgement in the Ciuill Law .

Codicgn .

It is thus : Et nos Seneschallus praedictus visis , & diligenter Iurisperitorum nostrae praesidialis Curiae consilio totius praesentis processus merit , appensate , diligenter , & accurate examinatis , Quia per processum defensionalem dicti rei praeuenti denuntiati , & intitulati , elicitur intentio praedicti querentis , ideo ex his , & alijs ex processu resultantibus , per hanc nostram definitiuam sententiam , quam pro tribunali more maiorum nostrorum sedentes in his ferimus scriptis dicimus , pronuntiamus & declaramus dictum reum denuntiatum & praeuentum non fuisse , velesse criminum fibi impositorum culpabilem : Quinimmo a dictis criminibus sibi impositis fore , & esse absoluendum , quem eadem nostra sententia absoluimus , expensas hinc inde fact us in causa compensando &c.

Anglonomoph .

Our forme of iudgement is a great deale shorter , for it runneth thus : 21 The forme of entring iugment at the Common law Ideo consideratum est quod praedictus W. nihil capiat per breue suum praedictum sed sit in misericordia sua pro falfo clamore suo inde , & praedictus P. Laeat inde sine die .

Nomomath .

Well ye haue bin long in handling these matters of formal proceeding , wherefore I will aske you of this , but one question more , and then will passe ouer to intreate somewhat of common trespasses & wrongs , resolue me first in this , whether may the executor of the testator that was wronged by such diffamatorie speeches , haue an action for the said slaunder after the death of the testator ?

Codicgn .

It neither lieth for the executor of him that is slaundered , 1 That by the Ciuill Lawe an action of iniuries wil not be by executor against exec●tor . nor against the executor of him that did slaunder , because noxa caput sequitur , vnlesse the suit were begunne in the life of the testator , in which case the executor may well prosecute it Inst. de iniur̄ § non omnes & § pena●es ff . de iniur̄ l. iniuriarum . . 1 That by the Common law actio personalit mortiur cum persona , vnlesse it be in some speciall cases .

Anglonomoph .

It is a rule with vs that actio personalis moritur cum persona : yet this is not generally and indefinitely to be admitted , but only in such case , where the wrong did principally & immediatly rest vpon a mans person , & when ( as the Ciuilians say ) it is ita affixa ossibus vt in alium transferri non possit ff . de pecu . l. si quis ergo . . And therefore where one is entitled to haue a writ of accompt , or an action of trespasse for the taking away of his goods , and is attainted of treason or felony , the Queene shall haue these actions as forfaited to her highnes 30. H. 6. 5. 28. E. 3. 92. , but otherwise it is of a trespasse of battery Stamf . f . 188 , and so it hath bene pronounced for law , that if a termor make wast , and after he maketh his executors and dieth , the action of waste is gone , for it lieth not against his executors 23. H. 8. Br̄e Wast 138 46. E. 3. 31. , but though a couenant bee a thing merely personal , yet both an executor and an administrator may haue a writ of couenant Fit . n . b . 146. D. 2. Mar. 112. Dy . .

The eleuenth Dialogue of common wrongs and Trespasses . NOmomath .

Now that ye must treate of common wrongs & trespasses , I doubt not but you wil be lesse troubled with my questions , because such matters ar more plaine to you , and to me not very difficult . Notwithstanding for learning sake , & because I would ground my selfe vpon some certaintie of knowledge , I will mooue some doubts of these matters : first how many sorts or wrongs are there ?

Codicg .

1 The diuerse kinds of iniuries by the Ciuill law . Iniurie as we say is two folde , for either it is done re or verbis : re , when a man is assaulted or beaten : verbis , when a man is slandered & by termes disgraced or discredited L. 1. ff . de iniurijs . .

Nomom .

I pray you Anglonomoph . illustrate and explaine the members of this diuision by some conuenient cases .

Anglon .

Verie willingly , 2 What an assault is according to the Comman Law and to begin with the first : an assault is made when one man menaceth an other with a weapon or staffe , though neuer a blow be stroken , yet this is an assault 22. Ass. pl. 60 , and 43. E. 3. the Writ was Quare insultum fecit vulnerauit verberauit & maihemauit , and it was allowed though the wronge did sound to bee maihem 43. Ass. 39. , and as it was held per Curiam , where a man maketh an assault it is not lawfull for any to beate him , if the party assaulted may escape with his life 2. H. 4. 8. , yet the opinion of M. Brooke is that hee may beate him if hee cannot otherwise escape without stripes or wounds or mayming Br̄ Trespas 71. , yet the opinion of 9. E. 4. is , that I may beate a man if he will take my goods from me : and a seruant may iustifie a battery in the defence of his master 9. E. 4. 28. & 48. , but the assembling of people in a warlike manner is no assault , but hee that is the ringleader of such assemblies , before he may be impeached of assault must doe something else , as namely by vttering contumelious speeches , or stretching out his armes , or some other token whereby his intent may be knowen 17. E. 4. 4. , and he that commeth in company of them that make the assault , or he which commeth to aide them , is a principal trespassor 22. Ass. pl. 43 , and if a Iustice of Peace see a man doing an assault , he may presently arrest him by commaundement or word , to the intent that he may finde surety of the peace 9. E. 4. 3. , and it is lawfull for one man to beate an other in defence of his goods & chattels , or of his wife 19. H. 6. 31 35. H. 6. 51. & a man may likewise haue an action of trespas for the entring into his house Fit . N. b . 88. l. , but if a man licence one to come into his house , & he doth a trespas there , he shall be punished for the trespas but not for the entre which was graunted vnto him 3. H. 7. 15. Townes . , and nothing is more vsuall then a man to bring an action vpon the case for a slaunder , 1 That the Comman Law giueth an action vpon the case for a slaunder . and therefore if one man call an other bankerupt , an action vpon the case will lye 6. E. 6. 72. Dy . , or if one say to an other that he is infected of the robbery and murder lately committed and smels of the murder , an action vpon the case will lye for these wordes 15. Eliz . 317 Dy . , and the Duke of Buckingham brought an action de scandalis magnatum against one Lucas , because he said that the said Duke had no more conscience then a dog , and so he had goods hee cared not how he came by them 4. H. 8. rotul . 659. , infinite other cases might be brought tending to this purpose .

Nomomat .

I will trouble you no further herein but tell mee Codicgnostes , whether by your Law may the hushand haue an action for the wrong done to his wife , the father for a wrong done to his sonne , and the master for an iniurie done to his seruant ? 1 That by the Ciuill law an action o● trespas lieth by the father , husband , master , for a wrong don to the son , wife , seruant .

Codicgnost .

They may , and the Praetors edict in our Law to that intent is very manifest & notorious L. r . ff . de iniur . .

Anglonomoph .

To that our law accordeth : and first to shew , 2 That by the Common law the husband may haue an action for a wrong done to his wife . that the husband may haue an action for a wrong done to his wife , it seemeth that these words : & eam cum bonis & catallis praedicti A. ( mariti ) ad valentiam &c. abduxit , are necessary in the Writ , for as to the taking & deteyning only of the woman , it seemeth that the suit will only lye in the Spirituall Court , where things anie way touching matrimonie are to be decided : yet I wil not be peremptory herein , because M. Fitz . opinion is Fit . n . b . 52. K , that the suit for the taking of the woman onely , without mentioning any other thing in the Writ , is maintenable at the Common law , howbeit he putteth this case , that if a man sue in Court Christian for the taking and deteyning of his wife , which was lawfully maried to him , if the other sue a prohibition hereupon , he may haue a consultation quatenus pro restitutione vxoris suae duntaxat prosequitur Fitz . ibidem , and if the woman doe lye asunder from her husband the suit will lye in the Spirituall court to haue againe the fellowship of marriage and to dwell together as may appeare by these words of the Statut D. Cofins in li. de iurisdict . ecclesiastic . : ( vnlesse he will receiue her without ecclesiastical compulsion 13. E. 1. c . 34. West . 2. ) but where a man bringeth an action at the common Law de muliere abducta cum bonis viri : he must be sure that his wife hath atteyned to age of consent & that she hath actually consented to the marriage : for where a man marieth a wife before she be of the age of 12. yeres , & after she cometh to the age of 12. yeeres , & before she assent or disassent one taketh or carieth her away , the husband in this case cannot haue a Writ of trespas cum muliere abducta cum bonis viri by some authority , because it is not properly a mariage till she assent 47. E. 3. Br. Trespas 420 : yet M. Brooke doubteth hereof , & rather thinketh vpon very good reason the contrary , because it shall be intended a good mariage vntill the woman do disassent Brooke ibid . : but where the mariage is complete and without all daunger of contradiction , though the wife be dead or diuorced at the time of the action brought , yet the action is maintenable for the husband 43. E. 3. 22. , but the word ( rapuit ) must bee in the Writ as well as the word ( abduxit ) and therefore it will not ly against a woman , because one woman cannot rauish an other 43. E. 3. 23 , & if a man doe carrie away a woman by the licence of her husband , 3 In what cases by the common law an act●on wil ly for the master for a wrong done to his seruant . this Writ will not lye 1. E. 4. 1. , for it is vi & armis , & as to the bringing of an action by the mast . for some hurt don to his seruant , it is frequent in our bookes : for by the beating , or maiming or wounding of the seruant , the master hath the loss of his seruice : 3. H. 6. 53. & therfore if any man take the seruant of an other man out of his seruice , an action of trespas wil ly against him that taketh him 39. E. 3. 38. Fit . n . b . 91. I. 21. H. 6. 31. , but if a man find an other mans seruant wandring abroad & reteyne him , this is lawful , if he knew nothing of the first reteyner . But though by the common Law an action of trespas quare vi et armis did lie against him that tooke an other mans seruant out of his seruice : yet if he did only procure him to go out of seruice , and then reteined him , the master could haue had by the Common Law no action , but only an action vpon the case , but now by parliament an action is giuen vpon the statut of labourers 11. H. 4. 23. Br̄ Trespas 92. : Lastly it is plain by our Law , 4 In what cases by the common Law an action will lie for the father for a wrong don to the son . that the father may haue an action for the taking away of his son and heire , but in the Writ he must say cuius maritagium ad ipsum pertinet : for this Writ is giuen vnto the father , because the mariage of his son and heire , or of his daughter and heire doth of right appertaine vnto him , and if the father haue maried his heire before , so that he hath once enioyed the fruite and benefite of the marriage , which the Law allotted vnto him , hee shall not haue this Writ 12 H. 4. 16. 8. E. 2. Trnns 235 32. E. 3. Gard 32. , and if a man take away an other mans son and heire apparant and bestow vpon him good apparell , and the father seiseth his son as hee lawfully may , hee shall not be impeached for the taking of the apparell ; for in that he may make a good iustification for the taking of the body , the iustification must needs extend to the apparell of the body , because the Law considereth not bare and elementall bodies , but bodies apparelled : And Haukf . with others reasoneth well , that if a man put an other into apparell , and speaketh nothing of the loane of it , neither by expresse acte reserueth the propertie to himselfe , this is a gift in law : and if an aduowterer do take a woman from her husband , and apparelleth her with good attire , the husband may take the wife againe , and with her the apparell 11. H. 4. 31. Br̄ Trespas 93. , and as the father may haue this remedy for his son and heire apparant , so may the mother , likewise if shee be an inheritrix 30. E. 3. Br̄e 300 : so that I meruaile at Mr. Catesbies opinion 9. E. 4. that this Writte lyeth not for the wife 9. E. 4. 53. .

Nomomath .

I will require no more at your hands Anglonomoph . of this matter , now I pray you Codicgnostes resolue me in this , whether when any mans beasts do any hurt vnto an other man , if this be not done by the owners acte , default , or procurement , shall the master make good the dammage susteined by such wrong .

Codicgn .

1 How the owner shall be punished by the Ciuill Law for a trespas done by his beasts . Surely brute beastes , because they want vnderstanding and reason , cannot bee said properly to bind their owner ( noxaliter , so that the fault should be accompted his ) for any rauin hurt , or dammage whatsoeuer , neither doe such wrongs bind the owner of the beasts ex quasi delicto , for a matter like vnto a wrong : yet notwithstanding for preuenting of hurt , that may in such sort happen , the law doth prouide , that if the owner wil not voluntarily yeeld vp the beast as a recompence to him that is endamaged , he must render the dammages , or els by the authoritie of the iudge bee awarded & compelled to yeeld vp the beast L. 1. ff . si quadru : paup : fec : dic . , and thefore if any man do keepe or nourish a Mastife , or Boare , or Foxe , or Beare , or Lion or Wolfe , or some like beast which doth hurt or damnifie an other man , he that receiueth the hurt shall recouer dammages against the owner of the beast § Caeterum Instit . si quadru : pauperiem fecisse dicatur . , but if such a beast do escape away from me , 2 In what , case he shal not be punished though his beasts doe hurt to an other man . or goeth so farre from my pasture or warde that I cannot by pursuing recouer it , neither doe I know whether it is fledde , and so being escaped from me it doe hurt an other man , in this case I am not to susteyne any dammage , because in this case , I am free from fault : for the beast by such escape ceaseth to be mine , and may become his that shall take , or seise , or kill it . d . l. 1. § in bestijs & § Caeterum , versic . Deniq̄ , si vrsus

Anglon .

To this our Law agreeth , for we haue a Writ of trespas which saith , Quare vi & armis centum oues ipsius A. cum quibusdam canibus fugauit canes illos ad mordendum oues praedict as in tantum incitando qd per fugationem illam & morsus canum praedictorum oues praedictae multipliciter deterioratae fuerunt & magna pars ouium illarum faetus abortiuos fecit &c. per qd &c. Fit . n . b . 89. L But if a Dogge doe kill or hurt any mans beasts , 3 That by the Common law a man shall be punished for a trespas don by his beasts . the master being ignorant of his mischieuous property , hee is not punishable 28. H. 8. 25 Dy . & 29. Dy . , wherby I gather that if he know of his propertie ( though hee doe not set on his dogge or mainteine him to doe hurt to others ) he shall bee punished by action of trespas , and if a man doe driue his beasts through the Queenes high-way , to which way my land that is sowne with Corne is adioyning , and the beasts doe enter and spoile my Corne , the owner shall be punished for this , though hee did driue them out presently , or earnestly endeuor to chase them out of the Corne 10. E. 4. 7. , so if a man chase his beasts in the high way , and they doe escape into land , which is not inclosed and the owner doth freshly pursue them , and chaseth them out , yet this is no good plea in barre without shewing that the tenaunt of the lande , and all those whose estate hee hath in the lande , haue vsed to inclose the said land toward the high way 15. H. 7. 17 .

Nomomath .

I craue no more of this matter : now I would haue you to transfer your inuention to the discourse of other offences against the peace , which I doe thus dispose and distribute to your handling : because all offences against the peace are either in an inferior degree , as these whereof yee haue lastly spoken , or in a middle degree , as vnlawfull assemblies , riots , routes , and forcible entres , or in a higher degree , and they be of three sorts , namely such as bee committed against the dignitie of man , as treason and rebellion : or against the life of man , as murder , manslaughter , and homicide by chaunce : or against the good estate of man , as theft , burglarie , and robberie : I would therefore haue you first to begin to treate of vnlawfull assemblies , riots , &c. and then to goe on with the rest , accordingly as I haue set them down .

Codicgnostes , Canonologus , Anglonomophylax , we are willing to pleasure you in any thing that we can , and as you propose doubtes of euerie of these titles seuerally , we will endeuor to satisfie and resolue you to our power .

The twelfth Dialogue of vnlawfull Assemblies , Riots , Routs , and Forcible entries . NOmomath .

Tell me Codicgn . what doe you take to be publike force in your Law ?

Cdicgn .

When an vnlawfull assembly is mette together in the high streete , 1 The description of publike force by the Ciuill law . or in the open sight of men , to offer abuse , hurt , or iniurie to a mans person , or to take away his goods from him by violence and strength of hand . L. armatos . ff . ad L. Iul . de vi pub :

Anglonomop .

That likewise is publike force by our Law : 2 That in the matter of publike force the Common law agreeth with the Ciuill . of priuate force done to a mans person we haue spoken before , which if it bee publikely done , it turneth to be publike force , but as to the taking away of goods by open force , if a man do disseisie an other , and when he hath entred , he doth carie away the chattels of the disseisie , this is in our Law a disseisin with force and armes , 3 A difference by the common Law betwixt publike force and open force . & the disseisor shal be punished by imprisonment 11. H. 4. 16. West . 1. c . 37 4. H. 4. c . 8. , and a man disseised an other but not with force at his first entre , and it was found by assise that incontinent after his first entre , he cut down trees and this was awarded a disseisin with force and armes . 30. Assise 50. Assise 301.

Nomom .

What punishment haue they by your Lawes which commit such force ?

Codicgn .

The punishment of this fault in our Law , 4 The punishment of publik force by the Ciuill Law is diuersifyed by the qualitie of the persons that commit it : for otherwise bondmen , otherwise they that are free , are punished : and if it be mixed with an other fault , it was punished in a free man by ancient Lawes , with perpetuall banishment , and the confiscation of goods L. 2. ff . de publ . iudic . & l. fi quis ad se fundun . C. eod . & § item lex Inst. eod . , but now it is punished with bannishment for a certeyne time without confiscation of goods § relegat . Inst. quib . mod . ius pat . potest . soluit . , but it is to bee noted that the said punishment only taketh place when force is actually done or committed , but if nothing be done forcibly , but certein men hauing weapons are assembled in a great multitude together to commit force , the punishment of that offence is arbitrarie and lefte to the discretion of the Iudge , but the Law setteth downe this mulct in certein , that if he be a man of worth hee shall pay to the common treasurie , an hundred pounds in gold , whosoeuer in such sort offendeth . L. ff . C. Ad L. Iul . de vi publ . 1. & 2. in prin. ff . eod .

Anglonomophilax ,

5 That by the Comman Law the counsellors & committors of force are alike punished By our Law if a disseisin be found to be done by diuers men , and to be done by force , and one of them is found to bee but a counsellor of the disseisin , yet euerie of them shall be awarded to prison 17. Ass. pl. 14 , and if a man be atteynted of trespass at the suit of the partie , or of a disseisin with force , wherefore he is commaunded to prison , if he be present , or that he shall be attached , if he be absent , whereupon he is attached and put in prison at the Kings suit , vntill he haue payd a fine to the King , and after he findeth pledges for his fine , and prayeth that he may bee at large , he shall not be permitted to goe at large , vntill the Court be sufficiently enformed that be hath agreed with the partie , if the plaintife doe require before that his body may continue in prison , vntill the defendaunt haue agreed with him 22. Ass. pl. 74 . An vnlawfull assembly is where aboue the number of two doe assemble to doe some vnlawfull act , 6 What on ●●lawful ●ssembly is by the Common law and they doe it not in fact , but after their said assembly they depart without doing more , 7 What a rout is . and a rout is their tumultuous proceeding to performe the act purposed : but a riot is when more then two doe assemble together to the intent to doe an vnlawfull acte , 7 What a riot is . as to beate or to maime an other , and they doe this in fact : but if diuers assemble , and none know to what intent , this is not punishable till the intent be knowne Fitz . Iust . de P. 28 Marr . lect{ur} 8. Cromp . Iust . de P. 53. , and when men are indited of riot , they comonly pray to be admitted to their fine , that by the paying of their fine they may escape imprisonment , but de rigore iuris they ought as well to be imprisoned as fined . Cromp . Iust . de P. 53. b .

Nomomath .

I would know of you Canonologus whether there be any penalty in your Law prescribed for such offences .

Canonol .

Yes there is a penalty set downe for clarkes , and such as haue taken holy orders , 9 The punishment of the aforesaid offences by the Canon law . for if they do comit publike force , they are to be excomunicated vntill they be reformed , & they may be depriued for such publike offence . c . veritatis ext . de do●o & contum . &c. Inquisitionis , &c. qualiter & quando extr . de accusat . &c. licet . Heli extr . de simon . & .c. Generali de elect : lib . 6.

Nomomat .

But what if the Magistrates in the Countrey be negligent and remisse in punishing such offences , hath nor your Lawe Codicgnostes prouided reformation for them .

Codicgn .

Yes , 1 The punishment of the Iustice not punishing such offences by the Ciuill Law . if any Iudge will not doe Iustice in the repressing & punishing of such offendors but shall either defer the punishment , or neglect to giue sentence , or shall partially demeane himselfe in the smothering of that fault , or shall not inflict the punishment due to such offences , the said Magistrate is by Law to be made infamous , to be depriued of his office , & to be made vncapable & vnable for any other office , & further he is to be fined a C. li. in gold . m

Anglonomophylax ,

2 That the Iust . of Peace by the Common law are punished for remisnes of punishing others , for the aforesaid faults Our Law is likewise seuere against such : for if the Iustices of Peace , and Sherife , or vnder-Sherife doe record the force , and doe not commit the riotors to prison , or if they commit them , and do not record the force , they shall pay euerie of them a C. li. for the Statute is , that they shall record and commit 13. H. 4. c . 7. , and if any riots , routs , or assemblies of people be done against the Law , two Iustices of Peace at the least with the Sherife or vnder-Sherife must go to the place where the riot , &c. is committed , and they must take the offendors &c. and this is by the Statute of 13. H. 4. cap . 7. but notwithstanding this Statute Fineux chiefe Iustice , was of opinion 14. H. 7. that forsomuch as the Statut is but merely in the affirmatiue , that therefore one Iustice of Peace may goe and take power with him , and represse the riotors &c. and hee needeth not to stay for his companions , nor for the Sheriffe , nor &c. because the Statute is a beneficiall Law made to auoid a mischiefe which might otherwise happen if one Iustice should stay for his companions 14. H. 7. 10 {per} Fin. Fitz . Iu . de H. 16. , and the Sheriffe and Iustices of Peace make take with them as many men in harnesse as are necessarie and gunnes &c. and may kill the riotors if they will not yeeld themselues : and if the two Iustices which be nearest vnto the place , where the riot is committed , and the Sheriffe or vnder Sheriffe do not execute the said Statute of 13. Henr . 4. they shall euery of them paie an hundred pound , as before I haue said and the other Iustices of the same countie , where the riot is committed shall be fined for the not repressing of the riot , if there be any default in them 23. Eliz . Crom . Iu . P. 54 , but in such case it seemeth that the Iustices of the Peace should haue notice of the riot gluen vnto them , or else that it should be so notorious that by common intent they may take notice of it . Crompt . I. P. 54. b . Dyer . 210

Nomomat .

Wee will proceed no farther in this matter , but will now pass to the title consequently ensuing .

The thirteenth Dialogue of Treason and Rebellion . NOmomat .

Let me know Codicgnostes before we enter into particuler in quirie of the things which are in themselues , and ipso facto treason , what in auntient times , and other Common weales , hath been taken to be treason , and how hath it been punished , for I thinke that will giue great light to matters subsequent , because that which is past was the originall of that which is present , & it is good in matters of common weale to haue a diligent retrospect to the course of former ages .

Codicgnost .

It is true , 1 The reason is shewed by Codicgnostes wherfore treason is aptly tearmed a fault ●gainst the dignitie of man . and first I will shew how aptly you haue termed this offence to be a crime or fault against the dignity of man : for as nothing should more debase mans nature , then if against man , whom God hath made little inferiour to the Angels , whom he hath crowned with glory and worship , whom he hath made Lord of the workes of his hands , and hath put all thinges vnder his feet : Psal . 8. ver . 6.7.8.9 . If I say against him the beasts of the field should rage and rebel , as it happened in Rome , when as a preamble of the fatall confusion of that City , all the beasts subiect and necessary to mans vse , namely dogges , horses , asses , oxen , &c. would not suffer their masters to touch them or come neere them , without destruction and perill : Oros . lib . 5. Iul Obsequens in lib . de prod . D. August . li . 3. de ciuit . dei ca. 23. so surely when they , who are in subiection to a Prince or Monarche , doe violently and mutinously breake the bond of obedience and loyalty , and will doe as they list , and thereupon rebell , and treacherously conspire against the life of their Prince , this is against the dignitie of man , who being Lord of brutish creatures , doth imitate them , and becommeth as wild and sauage and disobedient as they . Now I will call to remembrance , how this disloyalty or treacherie in the highest degree , hath in other ages receiued censure and punishment . 2 The punishment of treason in antient times . Traytors were alwaies lothed , detested ; and sharpely punished of the Romanes : and treason was accompted farre more greeuous then paricide , Dionis . Halicarnass . Tit . 2. & 8 sometime they were throwne headlong downe a rocke , as Cassius : sometime hanged , as Lentulus and others of Catalines seditious societie , or by some speciall kind of infamous death executed , as Suetonius reporteth , Sueton . in Neron . c . 49. and they which conspired against Augustus , when he was newly come to the Empire , bore the smart of their treacherous designments , and were seuerely punished for the imagination of that heinous mischiefe . Dio . Nicae . in August . This Iustice of the heathens is iustified by diuine authoritie . Non mittam manum meam in vnctum domini . 1. Reg . c . 24. Quare non timuisti mittere manum tuam vt occideres vnctum domini : 2. Reg . c . 1. for surely the maiesty of a prince offended & hurt , doth require a deepe reuenge : and if Nemesis , that is reuenge it selfe , doth take sharpe punishment of those which offer any violence to the person of an Embassador , Appian . in select . representing a Prince or Monarche ; with what extremity of paine are they to be tortured , which imagin or goe about to compas the death & downfall of their liege and dread Soueraigne : Wherfore worthily doth the excellent Lawyer out of Code apply these titles of Maiesty vnto kings & monarches : Celeste oraculum , Diuinitas , Eternitas , Eternales vultus . Alberic . Gentilis lib . 2. lection . & epistolar . c . 14. Maiestie therefore , which by some is said to be the daughter of honor & reuerence , ought alwaies , and in all things to be respected with honor and reuerence .

Nomom .

Shew me I pray you what may properly & iustly be termed treason by your lawes .

Codicgn .

It is treason when any thing is sediciously attempted against the Prince or common weale : likewise to helpe the enemies of the king , 1 The diuers kinds of treason by the Ciuill law . or commonweale with munition , mony or counsaile , likewise to take any castles , fortresses or holds against the king or common weale : also to suffer him to go out of prison who is accused of this fault , & he that cometh or causeth false mony , l. 1. 2. 3. & 4. ff . ad l. Iul . maiest & l. quisquis C. eo . & C. de fals . mon . ●pen . which may be committed diuerse waies . I. When he coyneth mony , 2 The diuers kinds of treason by coyning of money in the Ciuill Lawe . which hath no authority to coyne , l. qui falsam . l. qui nomine & l. lege Cornelia testam . ff . ad leg . Cor . de fals . because to coyne or forme mony ad regalia pertinet , C. vnico , quae sunt regalia in vsib . feud . l. 2. § deinde cum aerarium ff . de orig . iur . 2. When mony is coyned in an vnlawfull and disproportionable matter , as when the diuers impressions of particuler coines of siluer & gold are stamped vpon copper , brass or tin or pewter , l. 1. in prin. C. de fals . monet . & l. quicūq̄ nummos ff . ad l. Corn . de fals . 3. When one that hath authority or licence to coyne money with a peculiar impression or character , doth vse a strange and vnlawfull stamp of his owne deuising , d l. leg Cor . test . in prin. 4. When the lawful & ordinary weight of the coine is falsified , & altered by one that hath no authority to alter . c . quanto de iure iur . extra & l. 1. de veteris numism potest C. li. 11 5 To vtter or cause to be vttered false mony knowing it to be false , l. leg . Corn . cauetur . ff . de fals . In all which cases , 3 The punishments of traytor , by the Ciuill Law . except the last , the offenders do suffer punishment of death , some of thē being burnt by fire , gloss . in l. 2. C. de fals . Moneta . su{per} verb . flammarum in 3 solut . ad argum . l. 1. othersome being throwne to deuouring beasts , l. quicūque cum sequent . ff . ad leg . Cor . defal . and their goods be confiscated , l. si quis in princ . C. de fal . mon . but he which vttereth false coin is punished with seruing al his life time to thē which dig in mines for mettal , ff . de variis & ext . or . crim . & the punishment of thē that clip mony is by our law capital . d l. quicunque ff . ad leg . Cor . de fals . But he that coineth mony with the impression of a strange prince is not punished with a natural , but with a ciuil death : for hee is punished with perpetual exile , & his goods are confiscated , for euery Prince of euery nation and kingdome hath his seuerall stampe and coine , and so they had in ancient times : 4 The seuerall coyns of fore in princes in antient time . the Aetolians did giue for their coine the image of Hercules breaking with his club the hornes of Achelous : the Thebanes did giue the twibil of Hercules : l. 3. ff . eod . the Trachinians Hercules sitting : the Macedonians Herc . his club and the hornes of a Goate : the Thrasians , Bacchus crowned , and Hercules their deliuerer : the Dymeans a Goate , which did tread vpon a frog : the Corinthians Pegasus , with Neptune hauing a three-forked mase in his hand , sitting vpon him : the Naxians did giue Bacchus with a longe beard , and a Satyre with a potte in his hand : the Metapontinians Ceres with a sheafe of corne : the Baeotians did giue a Fly with a Hart , & Bacchus his mazard with a cluster of grapes : the Dardanians did giue two Cockes fighting : the Athenians an Owle : the Argiues a wolfe : Alexander the great gaue for his coyne the image of Bucephalus his horse with victorie hauing wings : Pyrrus , Pallas hauing a speare in her hand sitting on a throne : Aug. Caesar the star of Capricorn , vnder which he was borne . Pollux . Sophocles interpraes . Hadrian : Iunius de renummar . in Nomen-clat .

Anglonomophylax ,

I will particularly examin all the precedent matters of your last discourse , which haue any resemblance or be of any vse in our Law , sithence order enforceth me to speake of disorder , and of the disloyall , and sedicious , and trayterous attempts against the person of the Prince , and the good estate of the Common weale , which may fully appeare by a statut made 25. E. 3. de proditionibus cap . 2. and likewise by the Common Law , for as Thorpe saith 22. 5 The diuers kinds of treason by the common law . E. 3. 22. E. 3. p. 49 it is treason to succor the kings enemies , and to leuie war against the King in his Realme , or to be adherent to the Kings enemies in his Realme , by giuing them aid and comfort in his Realme or other-where is made treason by the abouesaid Statut , as may appeare by the case of sir Nicholas Throgmorton , who was arraigned for being of counsell with Wyat in leuying his seditious war . 1. Ma. Dy . 98 Crom . Iu . P. 40 And D. Story being beyond the sea , and practising with a forrein Prince to inuade the Realme and to worke the death of our dread Soueraigne Lady the Queene , was iustly atteynted of high treason , 13. El. 298 Dyer and Sherleys a Frenchman , taking with Stafford the Castle of Scarborough rebelliously in Yorkeshire , was arraigned in the Kings bench vpon an indictment of treason , which was contra ligentiam suam debitam . 4. Mar. 144 Dyer .

Nomomath .

It seemeth to me that these words should only extend to lieges and subiects .

Anglonomoph .

6 How farre forth this word ( leageance ) doth extend by the Common law . Nay they doe extend to any one who is in the Realme in the time of peace , and hee that hath the benefit of the Queenes peace ( forein or other ) ought not to violate or disturbe it any way , but if it had beene in time of warre betwixt the two kingdomes , then hee could not haue beene arraigned , but should haue been ransomed : 7 How the Q. enemies are to be punished by the comon law agreeing with the law of God . but he that in a forrein common weale , where hee is permitted to soiourne , 4. Mar. 144 Dyer . will raise tumults , and kindle rebellion , deserueth to bee punished as a rebell , and therefore it is truely and iudicially said of Albericus Gentilis : Criminosos , violentos , ne quidem veri dei tuetur altare , quos neque intuetur deus , nisi iratus , Alb. Gentil . lib . 2. de Arm. Rom. c . 2. And againe : Innocentia praestat securitatem . A. Gent . li. 1 de Arm. Rom. c . 2. And therefore the Romanes did well in arraigning Bomilcar of treason , who being a straunger conspired against their state : Salust . in Iugurth . But it is true which before I said , that if warre be betwixt two Kings , as namely the King of Fez , and the King of Polonia , if the King of Polonia doe in his owne kingdome take prisoner one of the subiects of the King of Fez working mischiefe against him , this is lawfull : but to arraigne him or put him to death is vnlawfull : for a prisoner so taken is to bee put to his ransome , but not to open shame as a traytor : and therefore the Prophet said vnto the King of Israell : An quos captiuos abduceres , gladio tuo & arcu tuo eos percuteres ? Eliseus by a wonderfull miracle did make the Syrians , enemies to the King of Israel , his captiues , whom the King would haue slaine , but the Prophet did forbid him by this argument , that they which are taken in warre ought not to be slaine , much lesse these whom God had giuen vp into his hands . 4. Reg . c . 6. Iosep . 9. Amb. 1 de offic . 29

Canonol .

Indeede so is our Law , which saith , 8 How enemies are punished by the Canon law . Hostem pugnantem necessitas perimat , sicut resistenti violentia redditur , ita victo , vel capto misericordia debetur : c . 3. 23. q . 1. and this Law hath been practised of the Grecians , Plut. in apop . Romains , Alex . 4 gen . 7. Thessalians , Illerians , Triballians , and Bulgarians , Nic . Grego . lib . 4. 6 & to this purpose it hath been said , vendere cum possis captiuum , occidere noli . Horat . ep . ad Quin .

Nomomat .

I haue interrupted you Anglonomop . But I pray you continue that course which you proposed to your selfe in comparing the assertions of the ciuill Law touching matters of treason , with your rules of Common Law .

Anglonomoph .

Whereas hee hath said that to suffer one to goe out of prison for treason which is impeached for that crime , is treson : that is also agreable to our Law establyshed by Statute : whereof I will recite the words : de prisonarijs prisonam frangentibus dominus rex vult & precipit , qd nullus de cetero qui prisonam fregerit subeat iudicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus , & imprisonatus fuerit tale iudicium requirat , si de illa secumdum legem & consuetudinem terrae fuisset conuictus . 1. E. 1. c . 2. Rast . Felony 2.

Nomomath .

Doe ye then accompt euerie suffering of a prisoner to escape , 9 How break●ng of prison is taken in the Common law to bee a breach of prison ?

Anglon .

Yea , for if a man arrest one for felony and after let him goe at large whether he will : if he be arrested for felony it is felony , if for treason it is treason , if for a trespas it is a trespas & sic de singulis . Stamf . lib . 1. c . 26.

Nomomat .

10 How treason is committed by coyning of money according to the censure of the Common law Well , I pray you proceed in your purpose .

Anglonomophylax ,

As to that which is vttered of Codicgnostes , touching the vnlawfull coyning of money , it is for the most part consonant to the Common Law of this Realme , as now it is , and as it was in auncient times by the testimonies of Bracton Bract . li . 2. Tit de crim . laes . mai . , Britton Britt . fol. 16. , and Glanuille Glan . lib . 14. , and the aforesaid Statute of 25. Edward the third maketh it treason for a common person to coyne the Kings money without his warrant and authentike , which the statut calleth counterfeyting : and wheras the Statute saith ( the Kings money ) it must be intended the coyne of this Realme or the dominions of it : Stamf . 1. lib . 1. c . 1. and this word ( counterfeit ) doth import , that if a man doe counterfeit the Kings money , though he doe not vtter it , this is treason : 6. H. 7. 13. 1. R. 3. 1. and the forging and counterfeiting of Coyne of an other Realme is made treason , as well as the counterfeiting of the Coyne of this Realme . 4. H. 7. c . 18. 1. & 2. P. & M. c . 11. But then it must be currant by proclamation in this Realme , 1. Mar : c . 6. Cromp . I. P. 40 and as to the clipping of money heare the Statut of 5. of our Soueraigne Lady the Queene . Be it enacted &c. that after the first day of May next comming , clipping , washing , rounding , or filing , for wicked lucre or gaine sake , of any the proper money or Coyne of this Realme , or the dominions therof , or of any other Realme , allowed or suffered to be currant within this Realme , or the dominions thereof &c. shall be taken and adiudged to be treason by vertue of this Act &c. 5. Eli . c . 11.

Nomom .

I pray you now declare the forfeitures and punishments of the seuerall treasons .

Anglonomop .

The iudgement of him that is conuicted of high treason , 11 The seueral punishments of treason by the Comman Law is to be carryed backe to the place whence he came , and from thence to be drawne vpon a hurdle vnto the place of execution , there to be hanged by the necke , & to bee cutte downe quicke , and his entrailes and priuie members to be sundred from his body , and to be burnt within his view , and his head to be cut off , and his body to be diuided into foure parts , and to be disposed at the Queenes will . Stamf . lib . 3. c . 19. This is the iudgement and sentence of condemnation of a man , but of a woman it is otherwise , namely that she shall be drawne on a hurdle and burnt , Stamf . ibid . & 23. lib . aff . pl. 2. Com . 316. and the offendor shall forfeit his goods and lands to the king of whosoeuer the lands are holden . 25. E. 3. c . 2. Stamf . ibid . 1. H. 6. 5. Stamf . lib . 2. ca. 37. &c. 40. & l. 3. c . 20 4. H. 7. 11. per Towns . but he which hath estate in lands for terme of life or for yeeres , shall forfeit his estate onely , Stamf . li . 3. c . 26. and by the Statute of 26. H. 8. cap . 13. and 5. and 6. Ed. 6. cap . 11. tenant in taile shall forfeit his land if hee offend in high treason , but no man shall forfeit lands which he hath in the right of an other , as in the right of his wife , or in the right of a Church 5. & 6. E. 6 cap . 11. Stamf . lib . 3. c . 26 and with the land which a man forfeyteth , he shall forfeit his euidences which concerne the land , 49. H. 6. 15. and if a man leuy warre against the King , and is slaine in it , yet his land shall be forfeyted , 7. H. 4. 27. {per} Mark 34. E. 3. c . 12. 39. H. 6. c . 1 Stamf . l. 3. 29. and in such case the wife of such offendor shall loose her dower , and his bloud or linage shall be corrupt , Stanf . l. 3. c . 19. But such as clip , wash , round , or file mony , are only to forfeit their lands during their life : 5. Eli . c . 11. but such offence causeth not corruption of bloud , nor losse of dower .

Nomomath .

Now time and order doth require that ye should speake of Homicide .

The fouretenth Dialogue , of Homicide that is murder , manslaughter , & homicide by chance or misfortune . NOmomath .

Because the apt diuision of things giueth great light and ministreth exceeding helpe to the knowledge and vnderstanding of them , I would therfore know Codicgn . how many kinds of homicide are set downe in your Law .

Codicgn .

Homicide in our Law ,

1 The seuerall kinds of homicide by the Ciuill law , and first murder is described .

2 Manslaughter se defendendo by the Ciuill Law .

is either the wilfull killing of a man of set purpose , l. 1. in princ . & in § diuus ff . ad l. Corn . de sicar . & l. 2. C. cod . or else the killing of a man in the defence of his owne person , as if I.N. should assault I.S. with a sword he may defend himselfe with a sword , and so auoid the iniury , if otherwise he cannot eschew it : but if I.S. may fly from him without danger , then the Law bindeth him to fly , but if a man should so assault me , that he should driue me to a verie narrow pinch , so that I cannot find a meane to escape with my life , in this case it is lawful for me manfully to defend my selfe , though it be with killing him , Iodoc . Danconderius in rerum carmin . prax . c . 78. & 79 and these sorts of manslaughter may be committed with clubb , in d . § diuus l. 1. ff . ad leg . Corn . de sicar . stone , sword , or dart , with arrowes , lances , pertisanes , iauelius , or with guns , Iust . de pub . iudic . § Item lex Corn . or a man may be killed with poyson l. 3. § 1 ff Ad Corn . de sicar . or by precipitation & being throwne headlong from the topp of some house , or some bridge , or some hill , 3 The discription of selfeslaughter by the Ciuill Law or some tree , d . l. 1. ff ad leg . Corn . de sicar . there is an other kind of homicide , which is tearmed homicidium sui ipsius when a man killeth himselfe , and such offendors are punished by our Law according to the qualitie of their minde , whereby they were moued : for if they kill themselues through griefe or impatience G. de Bon . eorum qui mort . sibi consc . of some infirmity , 4 A diuersity of killing a mans selfe by the Ciuill Law no punishment followeth their fact , but they are left to the tribunal of the Almighty Iudge of the quick & the dead : but if they kill themselues vpon any other cause their goods are confiscated , Authen . bona damnatorum C. de Bon . damnat . Nouel . 134 c . fin. ff . de iur . fisc . & C. de priuil . fisc . Tit . lit . and their bodies thogh they be dead , & so impassible , & free from punishment , yet for the terror of them that liue , they are thus ordered , 5 The punishment of selfeslaughter by the Ciuill Law The body is drawne out of the house , wherein the man did kill himselfe , with ropes , not by the dore , but through some hoal or pit made vnder the threshold of the dore because it is vnworthy to be brought out the same way , which the man whilest he liued , did vse : & he is drawne by a horse to the place of punishment or shame , where he is hanged vpon a gibbet , & none may take the body down , but by the authority of the magistrate : Dāhouder . in prax . rer . criminal . c . 88. and none may weare any mourning roabe for such an offendor . l. liberorum § Pomponius in versic . non solent . ff . de his qui notan . infamia . The last kind of homicide , 6 Homicide by casualty is described is homicide per infortunium , or homicidium casuale , as if a Tiler with one of his tiles which he vseth about his worke , do hurt or kill one that passeth by , he is not to be punished for this hurt or fault , if he did giue warning before in conuenient time , Argum . l. cum quis l. si soluturus ff . de solut . l. 1 in princ . & l. de pupillo § in plurium , ff . de nou oper . nuntiat . the like may be said of these which vse bowes , or crosbowes , which lop trees , or cut thē down by the roote , if a man be slain therby , l. si putator . ff . ad l Aquil . ff . item si putator , de l. Aquil . so it is of them that ride a race , if they giue warning , & so it is of Carmen or coachmen , & so it is of others , whilest they do such things as are permitted by law , yet such persons must susteyne an arbitraty punishment , because so great a mischiefe ensueth , Damhorder ret . criminal . prax . cap . 85. and so it is of others which throw sodainly staffes or stones , at birds or dogges , and by that meanes hurt or kill , a man , Damhorder ibid . but yet God would haue man to be free from this fault , and therefore such offendors had Asyla , Temples of Mercy permitted vnto them as things necessary for their absolution . Deuter . 19. ver . 5.

Anglonomop .

It seemeth that wee make more kinds of Homicide then you , 7 Ang. Taketh exception to the diuision of Homicide by the Ciuill law . for with vs their is one kinde of Homicide of malitious purpose which wee call murder , an other which is comitted vpon the sodaine in a heate & furie of minde , which we terme manslaughter , a third which we cal se defendendo , a fourth per infortunium , the fifth Homicide of a mans selfe , whereby the offendor is called Felo de se .

Nomom .

Indeed Codicgn . you haue not as to me seemeth , comprehended in your diuision all the particular kinds of Homicide : for you seeme vnder your first member , which is the wilful killing of a man of malice forethought , to comprehend manslaughter , which is done in the heate and furie of anger and sodaine falling out .

Codicgn .

Indeed so I did meane it , 8 An other diuision of Homicide by the Ciuill Law . for our most compendious and complete diuision of Homicide is thus : either it is done destinato , or necessario , or casu destinato , when a man of malice preconceiued doth kill himselfe or an other man , as Nero , Iudas , and others , which kinde of manslaughter is impious , because the powre of life & death is Gods and not ours , and therefore is not to be vsurped by man , wherefore we haue a verie good rule . Nemo membrorum suorum dominus est : l. liber homo ff . ad leg . Aquil & l. lex . Corne . § Constitutum ff . ad l. Corn . de ficar . Necessario a man comitteth manslaugter , when he doth it in his owne defence , and to beat backe force by force , which kind of manslaughter being done by necessitie , and not by will , deserueth pardon according to the saying : Iudice me , fraus est concessa repellere fraudem . Armaque in armatos sumere iura sinunt . And it is a Maxime in our Law : Quod quisque in tutelam corporis sui fecerit , iure fecisse existimatur : l. vt vim . ff . de inst. & iur . Casu Homicide is comitted , when a man killeth one not purposing that , but doing another thing as the Hebrews do report of Lamech , that meaning to strike a wild beast he killed Cain with his dart , Ioh . Wolph . in Comm . ad Deuteron . li. 2. and so you may perceiue that we comprehend that which you cal murder , and that which you call man slaughter vnder that kind of homicide which is committed destinato .

Nomomat .

I do rather perceiue it , then approue it : wherefore I would haue you Anglonomophylax to shew the difference betwixt these two kinds in their seueral natures , & what difference they hold from other kindes of Homicide , that so I may more easily vnderstand wherein your Lawes agree or disagree , and likewise the reasons of the said accordance and disagreement .

Anglonomop .

The difference of killing men voluntarily and inuoluntarily is verie auncient . Genes . 9. & 4 Exod . 21. Deutren . 5. Leuit. 24. Numb . 35. Deutren . 19. And Demosthones saith , 8 The difference of killing men voluntarily & inuoluntarily is shewed to be ancient that the Phaenicians did punnishe such as did voluntarily kill men with death , and with the losse of all that they had : but such as did vnwillingly cause the death of a man they did pardon and forgiue Demost . in orat . cont . Mid : But the difference betwixt murder and manslaughter hath not bin heretofore much odened , or effectually stood vpon , which because it is large and of great compasse in our Law , I will ( God permitting me ) by some cases make cleere and apparant , and then discend to the discription of the other kinds of Homicide . 9 The difinition of murder by the Common law Murder is when a man killeth an other feloniously vpon malice forethought , Pl. Com . 261 and it is not materiall whether he kill him , openly or secretly , or whether he that is slaine bee an Englishman , or of other nation , if he liue in this Realme vnder the Queenes protection , Stamf . 18. and he cannot haue the benefit of Clergie and Sanctuary , 22. H. 8. c . 1. and there be two sorts of malice which are motiues to this horrible act , 10 Malice whereof murder commeth , is shewed to be two fold & diuers cases are put thereupon . namely a malice implyed , and a malice expressed : malice implyed is when one killeth an other sodainly without any defence on the part of the other : malice expressed , when it is knowne that there is malice betwixt the parties : Crompt . Iu : P. 19. I will illustrate both these seuerall kinds with seueral cases , beginning first with malice implyed . A Gaoler had malice to a Recusant who was in his ward , because he suspected that he was too familiar with his wife , and after the prisoner purposed to goe out of prison , as he went before for his disporte , and the Goaler suddenly stroke the prisoner vpon the head , so that he fell to the ground , whereupon he dyed , and this was adiudged murder at the Assises at Chester : Cromp . Iu . P. 20 And if a theefe rob an other man , and kill him , this is murder , though hee did neuer see the man slaine before , and though he had neuer inueterate malice against him : yet he had malice before the murder to this intent , that hee would rather kill him then be disapointed of his purpose . Com . 474 Two fought together of malice forethought , hauing purpose to kill , and a stranger came to part them and one of them killed him , this was felonie in them both , and they both were executed because they had an intent the one of them to kill the other , and this act came originally of that : 22. E. 3. Coron . 262. & Dyer 120 And if the Iustices of Peace with the Sheriffe come to suppresse riotors , and one which attendeth vpon them is slaine by one of the riotors , this is murder in him , and in all the other riotors which are present . Cro . I. P. 21. And if a man without quarrell offered doe kill one of the standers by , this is murder , Cro . I. P. 22. proceeding from implyed malice , Lam . Eirenarch . 255. Thus far of malice implyed : malice expressed may more easily appeare vnto you , as if a man bring an appeale of felonie against B. and the said B. meeteth the plaintife , and they quarrel together vpon the vsing of the said appeale , and fight , and B. killeth the plaintife , this seemeth to be murder , Cro . I. P. 21. and if a man be attrinted of murder he shall suffer paine of death , 11 The punishment of murder by the Common law and shall forfeit lands , and goods , and chattels : but manslaughter as it is in fact lesse heynous , so it is in punishment lesse greeuous , 12 The discription of manslaughter by the Common Law . for it is then committed when two or more fight together vpon the suddaine without malice precedent , and the one of them killeth the other , in such case the offendor shall haue his Clergie , Cromp . I. P. 23. Com . 261. but shall forfeit his goods , 13 The punishment of manslaughter by the common law . and if two doe fight together without malice precedent , and after diuers blowes giuen , the one of them flyeth a great space from the other , and the other goeth into a house verie neere for a weapon , and pursueth incontinent , and killeth him that flyeth , this is but manslaughter , because it was done in a continuing furie , Crompt . Iu . P. 23. and two did fight together vpon the suddaine without malice preconceiued , and one commeth to part them , and the one of them which fighteth killeth him , this is manslaughter in him , because the fighting was an vnlawful act : 22. Ass. Coron . 180 but if they had fought together Ex maltiia precogitata , and the one of them had slaine him , this had been felonie in them both . 22. E. 3. Cor̄ 266. Stamf . 16. Manslaughter se defendendo is , 14 Manslaughter se defendendo by the common law . where two fight together vpon the suddaine , and before a mortall wound on either party , the one flyeth vnto the wall , or to some other place , beyond which he cannot passe for the safegard of his life , and the other pursueth him , and he which flyeth killeth him that pursueth , this is manslaughter in his owne defence , 3. E. 3. Cor . 284. & 286. and it is not materiall in this case which of them begun the affray , or which of them gaue the first stroke Stamf . 15. , and the offendor in this case shall forfeit his goods 4. H. 7. 2. 43. Ass pl. 3. 21. E. 3. 17. , 16 Homicide by misaduenture . homicide by misaduenture is no other then hath been described by Codicgn . for he hath recited out of the Ciuill Law almost all the cases which we reade in our Law bookes : and his distinction likewise is of force and effect with vs : for if a man do an vnlawfull act , 17 The punishment of it . and any misaduenture doe happen vpon it , by which a man is slaine , this is felony though it be not murder : and for euery homicide by mischaunce a man shall forfeit his goods 22. Ass. cor . 180. Stamf . lib . 1. c . 4. , likewise he that is a homicide of himselfe , 18 Homicide of a mans selfe & the punishment of it . is such as hath been before discouered by Codicgnost . and he by our Law shall forfeit his goods . Fitz . coron . 301. 362. 426.

Nomom .

I pray you let me know this Codicgn . whether he that counselleth , commandeth , abetteth or assisteth a murderer , ought by your Law to be taken and censured as a murderer ?

Codicgnost .

Yes verily , for homicide is either consilij or operis , 1 Homicide is shewed to be twofold in the Ciuill Law consilij , and operis . and therefore if a man counsell one to doe a murder , who if the counsell had not beene would haue done it , hee that executeth the counsell , and he that giueth the counsel , are both in the eye of the Law murderers c . ficut dignum 1. § qui vero de homicid Extr. & cap . fin. co . Tit . lib . 6. & l. qui seruo . ff . de furem &c. Nullus ex consilio de regal . iur . in sext . . But when it is done by commandement by persons executing the commaundement , which otherwise would not haue done it , then the commaunder onely is accounted guiltie of homicide l. 3. § item versi . item qui author . ff . ad leg . Corn . de sicar . cap . fi . de homic . lib 6. l. In hoc iudicio ff de seru . corrupt . , and if one lend one a sword to kill an other man or himselfe , he is guiltie of homicide l. nihil inter est . ff . ad leg . Corn . de sicar . l. 15. qui opem . ff de furt . & in § interdum quoque Iust . de oblig . quae ex quas delic . nascuntur . , and if a man be cooperant in the act , he is a principall offendor . Gloss c . sicut l. dignum § illi vero verb . mors de homic extr .

Anglonomop .

2 By the Common law the counsellor & assister in murder are accounted principall offendors . By our Law the counsellor , commandor , or assistor are without any such difference or limitation as you haue made , guilty of homicide , and principall offendors : for all that be present , ayding , abetting , or comforting him that doth murder , are principal offendors thogh they giue no stroke , for the stroke of him that smiteth and woundeth is the wounding and striking of all the others in Law 4. H. 7. 18. Comm . 100. 3. E. 3. Coro . 309. 13. H. 7. 10 : and therefore they which come in the assembly or companie of others into any place where any euill is done , be it homicide , robberie , or any other misdemeanor , shall be held principall offendors , though they stand apart , and doe nothing 2. E. 3. Inditem . 22. Stamf . 40. Comm . 475 3. E. 3. Cor . 314 & 350. , but in these cases it is necessarie that they be confederat in the fact for if they be not confederate , they shall bee punished by fine , and no otherwise E. 2. Coro . 395. & 293. , but if they leuie hue and cry , and stretch out their hands to take the offendors they shall not be fined Stamf . 40 , and he which is within age shall not be fined in such case . 14. H. 7. 31.

Nomom .

I pray ye shew me whether they that kill men by witchcraft , or make their bodies to languish and consume away , are punishable by death in your Law ? for some be of opinion that there be no witches .

Codicgnost .

They may as well thinke that there bee no diuels , 1 Homicide by witchcraft is described . surely Europe is too full of such wicked wretches , which either by magicall artes calling vp damned spirits , or corrupting the elements , which God hath made for the vse of this life , do worke the destruction of many innocent persons , or else by acquainting themselues with familiar diuels doe effect the like mischiefe , 1 The punishment of witches & magicians by the Ciuill Law and their iudgement in our law , because they are such strangers to nature , is , quod feralis bestia eos absumat l. multi . C. de malefic . & mathem . , and such as by Images of waxe inchanted doe cause the death of any man , if they be conuicted and do confesse the fault they are punished as is before said , but if they will not confesse , their flesh it torne from the bone with nailes and with hookes l. fi excepta § fi quis C. de malefic . , and not onely witches , 3 They that haue asked counsell of wi●ches haue been in antient time punished . but euen such as haue asked counsell of Witches for the remedy of diseases , haue beene in former times punished . For Ammianus reporteth , that in the time of the sonnes of Constantine , and the other Emperors , which next succeeded them , If any man did weare about his neck any thing as a remedy of the feuer quartaine , or any other infirmity , he was punished capitally as accessarie to witchcraft Ammian . Marcell . li . 19. : and he telleth in an other place that a certein simple old woman , because shee was wonte to cure feuers by a kind of inchantment , was put to death as guiltie of witchcraft : and a young man in the bath putting his hands sometime to a marble stone , and sometime to his breast , and rehearsing withall , certaine letters of the Alphabet , imagining this to be a good remedie against the paine of the stomache , was put to death by the sword . Ammia . l. 29.

Nomom .

The Romans it seemeth were in this strangly opinionated : for the Graecians & others did approue such medicines . Pericles did hold that diseases might be cured by hanging certain written bookes about the neck of the diseased Plutar . in Peric . . And Bion the Atheist was of the same opinion Diogen . Laert . in vit . Bion , the Indians ( as Strabo testifieth ) doe account this the only physicke Strab . li . 15 , & Vallesias reporteth that charmes haue beene called remedies of Cato , Varro , Theophrastus , Serenus , Trallianus , and of many Physitians of Italy , Greece , and Arabia Valles . lib . de sa philos . . And Vlpian sheweth that many haue affirmed vnto him , that such charmes and inchantmentes haue done them good l. 1. § Medicos , ff . de extr . cogn . , and we know that there was a kind of exorcisme or coniuration vsed in the Church , 4 An obiection is made of exorcisme vsed in the Church . wherby the diuels were restreyned from doing hurt vnto men l. 6. C. de Ep. & cler . Alciat . lib . 2. parerg . c . 23. , & Iosephus saith , that this was Salomons inuention Iosep . lib . 8. antiquit . , wherefore mee thinks they that vse such things , or worke any good effect by such things , should in no sort bee punished . For ( as Apuleius saith ) Nihil quod salutis causa fit , crimino sum est . Apulei . apolog . 1.

Canonologus ,

It may be that Codicgn . had rather beleeue the censures of Romane Magistrates in matters of Iustice , then the opinions of Roman and Graecian Philosophers in table talke and common speech . I knowe by good authoritie these thinges are condemned , and therefore it is said of such men and their medicines in the Canon . Quae alij scelera , isti remidia nominant c . Illud quod 26. q . 2. . And Tacitus clearly affirmeth that such things medicorum disciplina condemnat Tacit. lib . 1. histor . : And Plutarch calleth such practises Insanias Plutarch . in pericl . : and if Lucian be of any authoritie with you , he saith , Per verbula & incantationes sanitatem operari non credo Lucian . in philopseud . . Pliny likewise speaketh to the same purpose in these words Maximae quaestionis & semper incertae est , valiantne aliquid verba et incantamenta carminum in medendo : sed viritim sapientissimi cuiusque respuit fides Plin . lib . 28. c 2. : As for these exorcismes heretofore vsed in the Church , Bodinus teacheth that the Prophets neuer vsed in their times any such matter Bodin lib . 3. daemon . , and he saith further , 5 Answer is made to the aforesaid obiection according to the opinion of Bodinus . that the primitiue Church neuer vsed them , and he disalloweth the testimonie of Iosephus , and disproueth it in this point : but sithence the matter is so doubtfull , I doe not think that the Law-maker ought to punish the vsing and applying of charmes , or such things , which are for that purpose hanged about the necke of the sicke body , if they be innocently done and without mixture of magicke or euill arte , with death : but it principally apperteyneth to diuines and preachers to extirpate such superstitions out of the hearts of men , and to teach them that it is irreligious , & against the glorie of God , to goe for remedy to such dumbe things , and not to God himselfe , and that faulse is that saying of Apuleius , Nihil quod salutis causa fit criminosum est : for their is nothing subiect to the vse of man so good , but it may be abused : yet surely the Lawes ought not to extend their seueritie against this last recited fault , if no greater fault be ioyned with it .

Nomom .

I am reasonably taught for this matter : but I pray you shew me whether witches haue any such power as hath beene before spoken of .

Codicgn .

6 The great & strange power of w●tchcraft . Doubtles they haue , and that may be proued by innumerable authorities . Virgil saith , that they haue this power : Sistere aquam fluuijs , & vertere sydera retro Virgil . 4. Enedi . . And againe . Carmina vel caelo possunt deducere lunam Virgil . in Pharm . . And Claudian affirmeth the like , Thessalidas patrijs lunare venenis incestare iubar . But most fully , most deeply , 7 Lucan is commended for his ample disclosing of the detestable secrets of sorcery . & most exquisitely doth Lucan in his sixth booke describe , and discourse of these things .

Nomomath .

These are the friuolous imaginations of poets , which may lie for the whetstone .

Codicgn .

But in many things , and doubtlesse in this , they do neither lie nor dallie : for whereas Virgill saith , Atque satas alio vidi traducere messes , this is no flying fancy , but the sage and graue determination of the makers of the lawes of the twelue Tables , where it is said in the old Latine , 8 The laws of the 12. tables do condemne witchcraft . Qui alienas fruges excantauerit quiue alienam segetem pellexerit . Quei alienas fruces excantassit queiue alienam secetem pelexerit : and therefore vaine is the surmise of Seneca when he said of such matters , 9 Seneca his opinion of charmes and inchantments is disliked . Rudis adhuc antiquitas & attrahi imbres cantibus , & repelli credebat : quorum nihil fieri posse tam palam est , vt huius rei causa nullius Philosophi schola intranda sit Seneca li. 4. naturali quaest. c . 7. . Whom S. Augustine doth iudiciously confute in his eight booke De ciuitate Dei , 10 S. August . confuteth the opinion of Seneca where he absolutly affirmeth , Haec maleficia generi humano perniciosa esse non dubium est D. Aug. li . de ciuit . dei 8. c . 19 . And Pausania a credible writer witnesseth , that he hath seene men , 11 It is likewise disproued by pausania . Qui sacris & incantamentis grandinem auerterent . Pausan . li . 2.

Nomomat .

If such hurt be done , it is done by the diuell , and the wicked spirits his ministers , which suggest such things to silly old women , & are readie to performe them at their command : but what fault can be iustly imputed to these women .

Canonol .

Surely their offence is verie great , 12 Witches are proued to be apostats , and in what maner they become apostates for they are most abominable apostats , and workers of extreame mischief , they haue denied Christ & vowed themselues to the diuell , which maner of vow is done either secretly or expresly : secretly , when one witch or coniurer voweth with an other coniurer or witch , that in consideration that A. hath promised to B. that he shall do great and meruailous things , as namely that he shall know future things , and doe other things , which others shall not be able to do , B. therefore promiseth to A. that therefore he will renounce the Catholike faith , that he will obstinately despise the holy Sacraments , that he will with all his strength & power worship & cleaue to his master , and wil giue to him all kind of adoration vnder the forme of idols : & this is called a secret protestation , because it is not done to the diuel himselfe but to his seruant c qui sine saluatore 26 q . 2. Sum . confession . co . Tit . q . 3. & 6. & q. 10 in sin . , the other protestation is called the express protestation and it is double , either priuate , or solemne & publike , the solemne or publike is that , which is don to the diuel sitting in the throne of his pride , to receiue the generall assemblies of all witches , coniurers , & inchanters , as is verie liuely and wittily described by Torquato Tasso in his Ierusalem &c. Tasso Gieru . liber . Cant . 4.

Siede Pluton nel mezo , e con la destra . Sostien lo scettro ruuido , e pesante ; Ne tanto scoglio in mar , ne rupe al pestra , Ne pur Calpe s'inalxa , o'l magno Atlante , Ch'anzi lui non paresse vn picciol colle , Si la gran fronte , e le gran corna estolle . Horrida maesta nel fiero aspetto Terrore accresce , e piu superbo il rende , Rosseggian gli occhi , e di veneno infetto , Come infausta Cometa il guardo splende . Gl'inuolue il mento , e sù l'irsuto petto Hispida , e folta la gran barba scende . E in gutsa di uoragine profunda . S' apre la bocca d'atro sangue immonda &c. Nomom .

At what place and in what time is this wickednesse done ?

Canon .

It is done in woddie places , or in caues vnder the earth , which are far remote & distante from the places of mens conuersation , such dark and shadowed groues and corners , as are verie fully portrayted by Lucan . Lucan li. 3.

Lucus erat longo nunquam violatus ab aeuo . Obscurum cingens connexis aera ramis , Omnisque humanis lustrata cruoribus orbos : Illis & volucres metuunt insistere ramis Et lustris recubare ferae , &c.

In such desolate places , or in ruinated castles this mischiefe is celebrated , and commonly it is don in the darkenesse of a most tempestuous night c . Episcopi 26. q . 5. , for the Diuell falling from Paradise fell into extreame darkenesse , & by defect of grace deliteth in darkenes T. Aquinas in tractat . 44. quaestion 16 artic . 1. est in Tit . de daemon . , so that all the workes that proceed from him are blacke , horrible , and full of darkenes , cleane contrary to the workes of our Sauior Christ , which he did in the open light , for the glorifying of his father and the edifying of his Church .

Nomomat .

Yet my assertion remayneth firme , that all the euils whereof you haue before spoken are done by the diuel , and not by the witch .

Canonologus ,

They are done by the witch cooperating with the diuell , 13 It is proued that the bodies of witches do worke with their minds in lewd ente●prises . who will not doe any such hurt without their command , for surely the bewitching of mens bodies must needes be accounted their owne worke . The bodies of aged persons are impure , which when they waxe cankered in malice , they vse their verie breath and their sight being apt for contagion , and by the diuell whetted for such purpose , to the vexation and destruction of others : for if they which are troubled with the disease of the eies called Ophthalmia , do infect others that looke earnestly vpon them : is it any meruaile that these wicked treatures hauing both bodies and mindes in a higher degree corrupted , should worke both these & greater mischiefes ? but their malice doth especially exercise it selfe vpon the weake & tender bodies of children and yong women , which are most subiect to the impression of the ayre , that is infected by them , as Heliodorus plainely sheweth Heliod . Ethiopic . lib . 3. , and that it hath been so thought in antient time , may appeare by Theocritus speaking of the remedy which was wont to be vsed against such witchcraft Theocrit . eidyl . 6. & 7. , and againe they deserue seuerely to be punished , not onely for vowing themselues to the diuell , but also for mingling themselues in the companie of wicked spirits , which must needs infect their bodies and soules , and so make them apt instruments for the hurting of others .

Nomom .

I doe not thinke , 14 Alciate his opinion touching the meting of witches amongst themselues , and the meeting of the diuer is vrged . that is possible to be done , which is commonly reported of witches , dwelling in seuerall places , meeting one an other and meeting likewise the diuell , and that opinion holdeth Alciat , Alciat . lib . 8. parerg . cap . 22. and some other in these daies : wherfore I see no reason that they should be punished for it .

Canonologus ,

That is both true and possible , 15 Alciate his said opinion is confronted by the authoritie of Bodinus . as against Alciat , and other writers strangely conceited in this point , Bodinus hath largely and learnedly disputed . Alciat denieth it to be possible , that naturally bodies , which are said to meet in places far distant , should at the naming of Iesus vanishe into the ayre , and be carried swiftly and inuisibly thether , but this is possible enough : For if the spirits can not in a moment withdraw the sight of things , surely they can do verie little : for this is many waies done , and iuggelers and professors of feates can performe it , and as to the swift transporting of them to remote places , Bodinus reasoneth well ; that if the Spirit of the eight Sphaere of the heauens , doe mooue a thing of so great compasse and quantity in so short a space , that in one howre it passeth aboue a hundred times an hundred miles , why may not a wicked spirit carrie the small bodies of such witches in the minute of an howre , the space of a hundred or two hundred miles : yet I do not thinke it possible which some affirme , that the bodies of such witches may pierce through a chinke or riffe of a wall ( for the nature of the body cannot be altered ) but this seemeth rather to be an illusion of the diuell offered to witches : but what of this ? suppose that a witch doe confesse vnto a Magistrate , that she went in by a riffe of the wall to kill a child , which shee kild , because it is not possible that the witch should passe through such a narrow creuise , shall the Magistrate therefor absolue the witch , as guiltlesse of the childs death ? Nay rather let him diuide the matter , and seuer that which is impossible , from that which may be , namely the passing through the riffe of the wall , from the killing of the child : for it may bee , that in truth the diuell brought her in at the doore to kill the child , though he made it seeme to her that she came in at a chinke of the wall : but surely if there were no other fault in witches , then the renouncing of God , and the abiuring of the Sacraments ; yet this being in it selfe consummat apostasie , doth deserue extreame punishment , and whosoeuer thinketh that witches , because for the most part , they be sottish , old , and doting , are verie easily deceiued , and therefore ought to bee spared , hee is in a greate error , for malice driueth them to desire that , which by the diuels meanes they compasse ; when they haue obteyned it , their froward nature doth ioy in it , and the diuell for the most part leaueth them , before they leaue him .

Nomomat .

Indeed so it seemeth : for when they fall into the handes of Iustice , and bee cast into close prison , the diuell commonly practiseth no more feates for them , but suffereth them to susteine the punishment of law without any intermedling for them : but I haue much wondred what should be the cause of this .

Canonol .

That is done for two causes . First , 16 A double reason is alleaged wherefore the diuel worketh not for witches after that they be imprisoned . because the diuell seeketh nothing more desirously then the gaine of their soules : for when he thinketh that the soule is wholly brought vnder his power , he expecteth for nothing so greedily , as the departure of the soule from the bodie , that he may torment the soule , which before the death of the party he doth retinere subpacto , and he not only laboureth , but hasteneth his death as much as he can , least repentance ( God is the God of mercy ) doe deliuer the miserable caytife out of the snare of damnation : c . Nec mirum 26 q . 5. D. Augustin . lib . 3. de Trin . 10. de ciuit . dei . Thom̄ Aquin . in tractat . 44. primae partis quest . 5. in Tit . de mira . an other reason is wherefore they being imprisoned cannot escape though the diuell would deliuer them out of prison , is because the Iustice of Almightie God will not suffer the diuell to exercise his naturall power for them : for if he should permit him , God might perhaps seeme to weake & shallow consciences , to haue cast of the care of humaine affaires , and of doing Iustice : wherefore for his truth and glorie he will not suffer it . D. Aug. d . lib . 10. de ciuit . dei & T. Aqu . in d . tract . 44. d . q . 5.

Nomom .

You haue spoken sufficiently of witches , and their lewde practises , of their punishment , and danger of their soules . Now I would haue you to speake of coniuration and necromancie , whether the practises of it are able to worke such effects , as is commonly reported , and how by your Law they be punishable .

Canonol .

17 That necromancie and Magike was vsed in ancient time . This wickednesse hath been in ancient times practised . Suetonius in the life of Nero , saith , Facto per magos sacro euocare manes tentauit Sueton . in Neron . c . 34. . And Tacitus maketh mention of a certain yong man misled to this naughtinesse , Iuuenem improuidum & facilem inanibus , ad Chaldaeorum promissa magorum sacra , somniorum etiam interpretes impulit , tentatus vt infernas vmbras carminibus eliceret . Tacit. lib . 2. Annal .

Nomom .

I pray you tell me when there be such apparitions in the persons of the dead , whether are they diuels or dead mens bodies that are so raysed vp .

Canon .

It is an easie matter to resolue this question , but a hard matter to discourse of it : But shortly to answer it , I think they be diuels which resemble men that are dead .

Nomom .

18 A discourse of the apparition in the liknesse of Samuell . Yet in the booke of Ecclesiasticus there is speech made of the body of Samuel raysed by the witch of Endor . Eccles . ca. 46

Canonologus ,

But that booke is not Canonical Scripture .

Nomom .

But a man may reason out of Canonicall Scripture that it was no diuell which appeared to Saul in the likeness of Samuel , because the diuell would not vse such holy speeches as are attributed to Samuel , in the first booke of Samuel , which is Canonical Scripture . 1. Sam . c . 28.

Canonologus ,

What meruaile is that ? when the diuell can transforme himselfe into an Angel of light ? and so he did deliuer true testimonie of Christ Matt . 8 Mar. 1. Luck . 4. , though to a false and euill purpose , and likewise of Paule Act. 16. , but holy Samuel would not haue suffered any such adoration , as is expressed in that Scripture : and therefore Tremellius and Iunius do rightly comment vpon that place , that it is not in the power of the diuell , nor of the witch his seruant , to draw againe into the world iust men , but that it was a crafty & false pretence of the diuel to make men think that the true worshipers of God are in his hands after their death .

Nomomat .

You haue almost made me of your opinion . But tel me Codicgnost . what punishment hath your Law ordeyned for necromancers and coniurers .

Codicgn .

They are by our law either executed vpon a gibbet , 19 The punishment of necromancers and coniurers by the ciuill Law . or throwne out to deuouring beasts . Paulus lib . 5 Tit . 23.

Anglonomophyl .

By a Statut made in the fifth yeare of the fortunate raigne of our Soueraigne Lady Queene Elizabeth , 20 The punishment of necromancers and witches by Statut● It is enacted that if any man doe vse any inuocation or coniuration of euil spirits for any cause , or haue vsed any witchcraft , inchantment , charming , & sorcery , wherby any person is slain or destroyed , this is felony in them , their aydors , and counsellors , & they shall lose Clergie , and Sanctuarie : and if any doe languish in his body by such witchcraft , inchantment , or sorcery , the offendor conuicted shall suffer a yeeres imprisonment , and shall stand on the pillory in some market town in the said countie where the said offence is committed , on the market day once in euery quarter of that yeere , and this offence if it be committed the second time , is made felony . 5. El. cap . 1● .

Canon .

21. The punishment of coniurers by the Canon law . It is an excellent law , and worthy of so noble a Lawmaker : by our law , which stretcheth not to the taking of mans life , such offendors are shauen & made bauld on the head 26. q . 1. ca. de benedicto , & they wear a miter on their heads , wherein their offence is in great letters painted ca. episcopi . ibid . , & they are set vpon a ladder whilest the people go to heare diuine seruice In d . c . Episcopi . & ca. de benedicto . & so they are cast out of the parish 26. q . ca. Episcopi . , & diocese ca. Episcopi , & ca. de benedict . : & if they haue any office or benifice , they are depriued of it Gloss . fin. in ca. 1. de sorti . Extra c non oportet . 26. q . 5. , & if they be of the Clergie & not benificed , they are disgraded . Cap. Admonendi 26. q . 7. de haere .

Nomomat .

You haue not yet shewed vnto me , whether if a woman do procure a liue child to be killed in her wombe , or causeth it as soone as it hath receiued life to be cast out of her wombe being by that meane an abortiue , & so is deliuered of it , whether the woman in this case be guiltie of homicide or no by your Lawes ?

Canon .

1. Homicide comitted by the Canon law by proring the vntimely birth of a child if death do ensue . Surely by our law , if any woman without malice or euil conueyance do bring forth an abortiue child which hath receiued life & is born before his due time & it dyeth , the woman is accounted homicida occasionaliter . ca. quod vero . &c. Moses 23. q . 2. & ca. si expositus . 87. Dist.

Codicgn .

2 The Ciuill law punisheth such offence whether the child haue receiued life or no . Our law punisheth the woman whether the child hath receiued life or no , if it be don of malice & euill meaning , for though the Physitions do make a distinction , & seueral degrees of that which is conceiued in a womans wombe : as namely , first there must be a thing ingendred : the next degree is a thing that is increased in the wombe : the third degree is a thing formed or delineated like to a man : the fourth , a child or infant : yet our law punisheth vndistinctly and without difference , the immature eiecting of any of these out of the wombe : & the reason is for the onely hope & possibility of a child that may be born l. Cicero . de paen . ff . & l. dius . ff . de extra ord . crim . gloss . in ca si aliquis de homicid . Extr. l. si mulierem . Ad l. Cor . de sicar . ff . , & therfore with vs such things as are don for the hindring of the conception of a child , are punished Paul●s lib . 5 sent . Tit . 23. & l. 38. § qui abortionis de paen . , & that worthily , because it is done to the iniury of nature , & in contempt of the most high God , who hath said Crescite et multiplicamini , and that by no other meane , then by continuall generation of mankind : howsoeuer there be some , of whom Victor maketh mention , which thinke that the woman committeth no fault in this act Pet . Victor . lib . 27. var. lect . c . 2. but as to the punishment of this fault in our law , if it be done for the gaine of money , the law inflicteth punishment of death , if through hatred or malice , with exile for a certain time . d . l. Cicer . & d . l diuus .

Angl.

In Bractons time it seemeth that our law did in this point somewhat neerely agree with yours : for he hath these words , 3 That though in Bractons time the comon law did agree with the ciuill & canon laws in the punishing of aborti●ments , yet now there is no such punishment by the comon law Si sit aliquis qui mulierem pragnantem percusserit , vel ei venenum dederit per qd fecerit abortiuum , si puerperium iam formatam , velanimatum fuerit , et maxime , si animatum , facit homicidium Bract . lib . 2. : but now the law is altered : for by the law now in force , homicide cannot be comitted , vnles the thing slain be in rerum natura● & therfore if a man kill an infant in his mothers wombe , this is not felony , neither shall he forfeit any thing , because it cannot be certainly known whether the infant dyed by the stroke or no . 3. Ass. pl. 2. 22. Ass. pl. 44. 1. E. 3. 24. Bri● . 45.

The fifteenth Dialogue , of Theft , Burglarie , and Robberie . NOmomat .

Time now requireth that yee should deliuer your opinions of these crimes which are against the good estat of man , as theft , burglarie , & robberie , & because theft is either single as pettie larcenie , & the sole act of taking away feloniously a mans goods : or else compounded & mixt with other wrongfull acts , as when burglarie & robbery are committed , therefore first I would haue you to speake of the former , & after of the latter : wherfore shew me first Codicgn . what is accounted pettie larceny or pilfering the euery in your law , and how it is to be punished .

Codicgn .

I think it fittest by your fauour , to declare first what theft in generall is , & then to discourse of the particuler kinds of it as you haue proposed them .

Nomomat .

I like your course well , I pray you therefore proceed .

Codicgn .

1 The definition of theft by the ciuill law . Theft is thus defined in our Law : ( A fraudulent contrectation of an other mans corporall moueable goods , which is don against the will of the owner , with a mind to gain either by the things stolne , 2 Wherefore the word ( fraudulent ) is vsed in the definition of theft . or by the possession of them , ff . de paen . l. 1. in fi . or by the vse of them ) a and this word ( fraudulent ) is therefore vsed in the definition , because if a man take away an other mans goods as thinking him to be the owner that biddeth him take them , or mistaking the goods which the owner appointed him to take , he is not in this case guilty of theft , Iusti . vi . bon . rapt . §. ita tamen . because neither the contrectation onely , nor the fraud only doth make a theefe , Arg. d . l. 1. §. inde sola . By the imperiall law , 3 How pettie the euery is punished by the ciuill law . if a man doe steale any thing worth v.s. or aboue , he shall be hanged , & if it be of a lesse value then he shall be whipped , c . 1. § si quis quinque solidos de Feudis : & glos . in §. & iudican Authent . de defens . ciuitat glos . in l. fin. & ibi Alexan . ff . de in ius vocand . glos . in §. fin. in fin. instit . de pen . temere litigant . but if he commit the second time , he is punished with the cutting off of one of his eares , or of one of his hands : & if he comit it the third time he is to be hanged , Authen . sed nouo iure C. de seru . fug . & Authen . vt nul . iud. §. quia verò nos oport . & the first time he is called fur : the second time consuetus fur : the third time famosus fur : d . Authent . sed nouo iure . and he that stealeth a sheepe , a goat , or a swine , is less punished then he that stealeth an horse or an oxe : for he may be whipped if he be of a seruile condition : ff . de paen . l. in seruorum . or if he be a freeman he may be banished for a certaine time : l. 1. ff . De abigeis . but he that stealeth a flock , 4 How the stealing of things of greater value is punished by the ciuill law . as ten sheepe or foure swine : or he that stealeth an horse or an oxe shall be adiudged to perpetuall banishment . l. 1. §. quanquam ff . eo .

Anglon .

By our law it is felony , 5 What is felony by the common law , & what is petie if a man steale aboue the value of xij . d . but if it do not exceed the value of xij . d . it is then pettie larceny , for the which the party shall haue imprisonment according to the discretion of the Iustices , 22. ass . p. 39. si foit est felony , ideo cest error but as to the stealing of lesser or greater things which bee aboue the value of xij . d . Stamf . lib . 1. c . 15. Cor . 178. we haue no difference of iudgement or punishment in our law .

Nomom .

Declare I pray you whether these that receiue & fauor theefes , are not guilty of theft by your lawes , and punishable as theeues .

Codicgnostes ,

1 Receiuers and theeues haue the like punishment in the ciuil Law , but yet with many diuercities and limitations . Because these receiuors are a lewd sort of men , without whom malefactors cannot long be vnknowne , therefore our Law inflicteth vpon them & the others which commit theft , the like punishment , l. 1. C. de his qui latron . vel alijs crim . reos occultant . but if a man do not receiue thē but do gainsay or refuse to offer vnto the triall & iudgment of law , such offendors which do lurke in his grange or in his manor , if he be personally resiant , and do keepe house there , he for this fact shal forfeit his grange or manor if he haue an inheritance in it , but if he haue only estate for yeres or at will , he shal be punished with perpetual exile : l. fin. in fin. eod . & they shal in both cases forfeit their goods , l. 1. cod . but that this matter may more clerely appeare vnto you , is is good to obserue that if a man either keepeth the theefe in his house , grang , or manor , not knowing him to be a theef , or knowing him to haue committed theft : in the first case he shall not incur the aforesaid forfeiture , vnles he refuse to yeeld vp the theefe into the hand of Iustice , when he is pursued : l. 1. eod . in versi . vel offerre . & l. requirendi , C. de serui● fugit . but if the owner of the house or grang &c. do know that a theef lurketh within the precincts of his house or grang &c. then he is either a theefe simply , or a theefe compositiue , as a robber by the high way , or a burglarer if he be a theefe simply , he that hideth him , must sustaine the same punishment that the theefe himselfe , d . l. C. de his qui latron . which punishment is sometime wayed by the quality of the person , by the greatnes of offences & by the multitude of offences iterated as before hath bin shewed : but if he whom he hideth , haue committed robbery or burglary , of what estate soeuer he be , and though it were the first offence , both in the theefe & in the fauourer , yet either of them shal susteine the like punishment : d . l. 1. C. de his qui latran . & l. 1. § in par . ff de receptat . but here an other distinction is to be vsed , for either he fauored the theefe , or the theft : if he fauor the theft he shall haue equall punishment with the theefe , l. secunda . § non tantum ff . de incend . ruin . naufrag . but if he fauor not the theft , but only the person of the theefe , then he is punishable by the same Law , but not by the same paine , for then his punishment is arbitrary , and left wholy to the discretion of the Iudge , l. 1. in fin. ff . de receptat . & in the very same state are they , which when they may apprehend such malefactors doe either for lucre , or for part of the things stolne let them goe . d . l. 1. ff . eo .

Canonologus ,

By our Canon Law , 2 How the receiuors of heretikes and other offendors are punished by the Canon law . they that are receiuors of heretikes are excommunicated , and are accursed with the highest degree of malediction , & when they are dead , Christian buriall is to be denied vnto thē , ca. sicut ait . de heretic . Extra . But this is to be vnderstood of such receiuors as fauor the person but not the heresy , for they are punished by the same punishment which our Law doth appoint for the heretikes themselues , ca. 2. de . haere . lib . 6. but in other crimes which are not heresies , our law vseth this distinction : either the receiuors are publikely diffamed , or not : if they be publikely diffamed , they are punished as the offendors themselues are punishable by our law , but if not publikely diffamed , then they are punished with a milder punishment . Gloss . in ca. 1 sup . verb . receptauerit de hon tic . li . 6 an . cor . quae habentur , in ca. cum non ab homi . de iudic . in cap . tuae . de paen . & in ca fin de furt . Exir .

Anglomophyl .

Our law punisheth the receiuors of felons , with great and rigorous seueritie , 3 How receiuors of felons are punished by the comon law , & who be accounted receiuors and without respect of the qualitie and circumstance of the persons : and if goods be stolne and I.S. knowing they be stolne receiueth them , in this case , though he receiue the goods onely , and not the felon himselfe , yet he is accessorie to the felonie , 3. E. 6. c . 24 & 27. El. per Wind . Iust . al Ass. al Staff . Cromp . I. P. 37 Stamf . 43. but in case of high treason there be no accessaries , but all be principall , 3. H. 7. 9. But otherwise it is in case of pettie treason : Stamf . 40. but in high treason as well the commanders as the assistors , abbettors , and receiuors , knowing thereof are principall , Exposit . termin . leg . fol. 4. If a man receiue one that is attainted of felony by outlawry in the same County &c. he is accessary to the felony , because the outlawry is a matter of record , of which euery one ought to take notice , Stamf 96. Dyer 355. but the Law would be otherwise , if hee should receiue him in an other County , 12. E. 2. Cor . 377. and the reason wherefore the receiuors and accessories should be punished , as well as the principall offendors , Lucan wittily sheweth in the person of one of his rebellious captaines : Rheni mihi Caesar ad vndas Dux erat , hic socius , facinus quos inquinat , aequat .

Nomom .

Now I pray you proceed and open vnto me the offence of robbery , how it is in your Lawes and how it is to be punished .

Codicgn .

1 The d scription of robbery by the ciuill Law Robbery is committed , when a man by force bereaueth an other of his goods , lying in awaite in high waies and secreat pathes , 2 The punishment of robbery by the said law . in woods , in heathes , and in other places remoued from the sight and testimony of men : for this , the offendors head shall be cut off with a sword , and he shall forfeit his goods , and his body shall be layed vpon a wheele , vnto which are fastned the boughes of these trees , vnder which the robbery was committed , as the witnesses of the crime , l. 1. C. de hi● qui latron . occult . & l. 1. ff . de receptato . & he that doth wittingly and willingly receiue such felons , is no lesse capitally punished then they . d . l. 1. ff . de recept .

Canonol .

This crime is so odious in our Law , 3 The punishment of robbery by the Canon law . that it suffereth not Temples to be sanctuaries , or places of protection to such offendors . c . inter alia Ext. de immu . Eccles .

Anglon .

By our Law , 4 The description of robbery according to the Common Law . robbery is then committed , when a man taketh any thing from the person of an other man feloniously , though it be but of the value of a peny , yet he shall be hanged : 22. Aff. pl. 55 31. H. 6. 16. & if a man doe threaten one to deliuer his purse incontinent , and if he will not that he will kill him whereupon he deliuereth it presently , this is robbery as well as that , where he taketh it from a mans person by force : Stamf . 27. and therefore the case was that two did lay hold on a man , and did make him sweare vpon a booke that hee would bring vnto them xx . li. by force whereof he brought vnto them xx . li. and they tooke it , this is robbery , for it must bee intended to bee done by force of the threatning , & against his will , 44. E. 3. 14 4. H. 4. 3. but where a thefe taketh xl . s . from an other man by the high way , without assaulting him , and putting him in feare of loosing his life , this is not robbery , but he shall be put to his Clergie . 5. Eliz . 224. Dyer

Nomomath .

Now I would know somewhat of the offence which is commonly called Burglary or breaking of houses in the night time , & stealing things out of them , and how it is to be punished .

Codicgnost .

They which breake into any mans house in the night time with purpose to kil , 1 What kind of house breach s capital in the ciuill law . if any man be within the house that will resist their violence , are accounted in our Law famous theefes and are punished capitally . l. Capitallium § Famosos ff . de poenis .

Anglon .

2 The definition of burglarie by the Common law . Burglarie is where any man in time of peace , & in the night time , doth breake any dwelling house , Church , Walles , Towers , or gates , to commit felony there , and he entreth , though hee carie nothing away , yet this is burglary , and the offendor shall be hanged . 22. Aff pl. 95 & 39. Stam . 30. Brit . 17. Dy . 99. 18. Eliz . cap . 6.

Nomom .

I giue ye great thanks for your pains bestowed in the cleering of these doubts , which I moued vnto you : I will not trouble you further in these matters ; accounting my selfe for your trauaile so long continued , to be greatly beholden , and verie much bound in all dutifull kindness vnto yee .

FINIS .

A Table of the Sections or Diuisions of the principall points , matters , and questions which are handled in euerie Dialogue .

The Diuisions and principall contents of the first Dialogue , of Contracts .

The first Diuision . 1. THe ground of contracts . 2. The contracts of infants , persons distracted of their wits , and religious persons , whether and how far forth they be good . 3. Monks are absolutely prohibited by the Ciuill law to make any contract : Infants are disabled with a certein qualification . 4. That by the Comon Law priors vnder the obedience of a Soueraign , and which were datife and reuoueable , could not implead or be impleaded without their Soueraign , vnles it were by speciall custom . 5. The same Law was of the Knights of S. Iohn of Ierusalem . 6. The infants contract for his meat , apparrell , and necessaries is good , if he be of the age of 14. yeeres . 7. That which the infant doth without actuall liuery , may be auoyded by action without entry or seisure , but that which he doth by actual liuery , cannot be auoyded without entry or seisure .

The 2. Diuision . 1. Whether the contract of the seruant , shall be accounted in Law the contract of the master . 2. That according to the Comon law , the master shall be bound by the contract of a known seruant if the thing marchandised be come to his vse , & he shal be bound by the contract of his factor , though the goods neuer come to his possession . 3. The act of a mans attorney or his generall receiuer , doth not bind the master without speciall warrant .

The 3. Diuision . 1. Whether the wiues contract made in the behalfe of the husband , will bind the husband . 2. That by the common law , an action of debt brought vpon a contract made by the wife for the behoofe of the husband , must be brought only against the husband without naming the wife . 3. That by the Ciuill law the husband is in no sort to be charged by the contract of his wife .

The 4. Diuision . 1. How contracts may stand or fall by their materiall causes , or the defect of them .

The 5. Diuision . 1. Some contracts are ordered by the Law of Nations . 2. An Embassador may according to the ciuill law be impleaded by the Law of Nations for a contract made whilest he is Embassador .

The 6. Diuision . 1. Whether contracts made with pirats , or robbers in the high way be good in law . 2 That pirats & robbers are not to haue aduantage of law in matters of contract . 3. That D. Hotoman erreth greatly in mainteyning that pirats & robbers may lawfully contract .

The 7. Diuision . 1. That by the comon law a consideration is the proper material cause of a contract , & that it may be expressed or implied . 2. That a contract is not good without money payd in hand , or a certeine day limited for the payment .

The 8. Diuision . 1. Whether the defect of forme do destroy the contract . 2. That solemnity & concurrence of circumstances is required in contracts by the Ciuill law , 3. That matrimoniall contracts if there be no assumpsit in them , are to be deuided by the Ecclesiasticall law if there be an assumpsit by the Common law .

The Diuisions and principall contents of the second Dialogue , of gifts and grants .

The first Diuision . 1. WHat things may be giuen or granted . 2. That all things that lye in commerce , and may be receiued , may be giuen . 3. That things Ecclesiasticall , though they be not consecrate , cannot regularly be granted . 4. That if an Abbot did alien landes giuen in Frankalmoign to his house , the donor might haue a writ contra formam collationis .

The 2. Diuision . 1. The diuers kinds of gifts , some being free , & some compensatorie . 2. What is wrought by the Queenes graunt ex mero motu . 3. What is wrought by her Maiesties grant , by of informamur , &c. 4. Whether vpon a false consideration expressed , an vse shall be raised in a comon persons case . 5. That a consideration may be auerred , which is not repugnant to the vse expressed . 6. That an vse may be altered by a consideration not valuable .

The 3. Diuision . 1. In what cases graunts shall be taken most beneficially for the grantee . 2. That a grant noncerteyn must be taken most strongly against the grantor . 3. That a graunt may be good in part , and for parcell not . 4. How the Queenes grants and licences shall be construed and interpreted . 5. A grant is not to be fauored contrary to the manifest sense of the words .

The 4. Diuision . 1. That by the Common law a grant that is not good at the first may not be made good by matter ex post facto , nor by the Ciuill law .

The 5. Diuision . 1. Whether a tenant at will may grant ouer his estate . 2. That the estate of the tenant at will is in maner no estate .

The Diuisions and principall contents of the third Dialogue , of Bargaines and Sales .

The first Diuision . 1. WHat things are forbidded to be sold . 2. That by the Canon law things consecrate , & religious , may not be sold 3. That poysons by the ciuil law are forbidden to be sold . 4. That there be some poysons which be medicinable and profitable , and the prohibition extendeth not to these . 5. That some poysons are medicinable alone , some with the mixture of other things . 6. what things are forbidden to be sold by the comon law .

The 2. Diuision . 1. Where a thing was not sold at the first , and where it was sold but the sale was defeasible vpon condition . 2. A difference betwixt a perfit sale , and a sale to be perfited vpon a condition performed . 3. That a prouiso though it be placed amongest couenants , may defeate a bargaine and sale . 4. That where a bargaine and sale is perfit , but defeasible vpon condition , the vendee shal take the profits till the condition be performed .

The 3. Diuision . 1. When no day is limited for the payment of a summe of money , what time the Lawe will require . 2. In such case the partie charged with the payment , shall by the Ciuill Lawe haue threescore daie . 3. That by the Common lawe when no day is limitted , the money is presently due , yet in some cases by some authoritie the discretion of the Iudges is to limit a time . 4. The definition of time according to the opinion of Aristotle .

The 4. Diuision . 1. That a bargaine and sale may be auoyded by the defect of some substantiall thing belonging to the act . 2. That fraud and deceit in the contract by the Ciuill law doth defeat the contract . 3. A difference where the default of the thing sold is Latens or Patens . 4. That whether the default be Latens or Patens , if the bargainor doe warrant the thing sold to be without fault , he is bound by the warrantie by the ciuil law . 5. That bargaines and sales , matters in writing and obligatorie , may be auoyded by alleaging that they were made or done per minas or by duresse . 6. That by the comon law a warrantie made vpon a bargaine and sale doth binde , otherwise it is , if the warrantie be made after the bargaine be concluded . 7. That the warranting of a thing which is euident to the sense , is no cause to bring a Writte of Disceit by the Common law .

The 5. Diuision . 1. That by the comon law the bargaine and sale , or the grant of the profits of land , is the grant of the land it selfe . 2. That by the Ciuill law a man may grant and demise the vse of a thing , and yet not grant the thing it selfe .

The 6. Diuision . 1. When a man selleth land wherein treasure is hidded , and the vendor knoweth not of it , whether the vendee shall haue the treasure . 2. How this word ( treasure ) is taken in the Ciuill law . 3. That by the Ciuill law , money and other things necessarie to the common vse of this life are forbidden to be hidden & buried in the ground . 4. Plato his superstitious opinion of things hidden in the earth . 5. How the Ciuill law doth order & dispose of treasure . 6. What the Common law doth determin of treasure .

The Diuisions and principall contents of the fourth Dialogue , of Seigniories , and Seruices .

The first Diuision . 1. THe description of a Seigniory by the Ciuill law . 2. By the Canon law . 3. Likewise by the Common law .

The 2. Diuision . 1. What homage is , and how it is to be performed by the common law . 2. That homage hath beene practised in ancient time .

The 3. Diuision . 1. What a Manor is , and whereof it consisteth . 2. The originall of a Manor .

The 4. Diuision . 1. Statutes made for the prseruation of Seigniories & Manors .

The 5. Diuision . 1. Fealty is the most generall seruice in the Common law . 2. In the Ciuill law . 3. That by the Ciuill law , the Common law , & the Canon law , a religious man ought to doe fealty .

The 6. Diuision . 1. The diuers kinds of seruices in the Ciuill law , & their definitions . 2. The diuers kinds of seruices in the Common law , & their definitions . 3. The originall of villenage , & the nature thereof . 4. The tenure whereby a man holdeth of an honor or manor is described , and by examples illustrated . 5. Certeyne honors which be not of the ancientnesse of the Crown . 6. Some honors which be annexed to the Crowne .

The 7. Diuision . 1. Whether one within age be compellable by Law to doe all manner of seruice either by himselfe , or some other . 2. A diuersity in the Ciuill law whether the father of such an infant died in a iust war , or at home in his bed . 3. That by the Common Law the infant shall be in ward if his father dyed seised of land held by Knights seruice , without any such diuersity . 4. A diuersity in the Common law , where the heire of the tenant by Knights seruice is within age and a Knight at the time of his fathers death , and where not .

The 8. Diuision . 1. What penalties lye vpon the tenant if he doe not his seruice . 2. Many causes of the tenants forfeiture in the Ciuill law , 3. Some causes of forfeiture by the Common law .

The 9. Diuision . 1. Whether when the tenant hath committed felony or treason , and is atteynted , he shall suffer any preiudice in his tenancie . 2. A diuersity in the Ciuil law , where the offence is committed against the person of the Lord , and where against the person of a stranger 3. That by the common law , by the atteynder of felony or treason the bloud is corrupted , & in the one case the land shall escheat to the King , in the other to the immediate Lord . 4. The aforesaid determinations & conclusions of Ciuill and Common law touching the forfeiture of the offendor are examined by the Law of God .

The Diuisions and principall contents of the fifth Dialogue , of Ioyntenancie and Tenancie in common .

The first Diuision . 1. THe ioyntenants and tenants in comon , ought to haue equall profit . 2. That by the Common law a Writ of account will lye if one ioyntenant take all the profits .

The 2. Diuision . 1. That ioyntenancie is dissolued by death , vnles there be some clause in the creation of the estate to the contrarie .

The 3. Diuision . 1. That by the Ciuill law by the ioynt gift of all the goods of a man , all corporall things passe . 2. That by the Common law if a man deuise the third part of his goods to his wife , it shall so be rated as they were at the time of the death of the testator . 3. That the Queene may grant a thing in action ,

The 4. Diuision . 1. That ioyntenancie by the ciuill law , may be of all such things as lye in contract . 2. That the limitation of tenancie in common is by the party , but the construction of it by the law .

The 5. Diuision . 1. That an assignee of a moitie in the Ciuill law is bound by the couenant of his grantor . 2. That by the Common law in such case the assignee is bound by the couenant .

The Diuisions and principall contents of the sixth Dialogue , of exchanges .

The first Diuision . 1. THat by the Ciuill law contracts for a certeyne price are not exchanges , 2. That by the Common law the word excambium must be vsed in the exchange . 3. That the estates must be equall . 4. That the things exchanged must be in esse . 5. That an exchange is good , though one part of it doe inure by way of extinguishment .

The 2. Diuision . 1. That the incumbents may not exchaunge their benefices by the Canon law . 2. That the Chapter may warrant permutations sede vacante in such benefices , wherein they haue interest or authoritie . 3. That by the Common law , Ecclesiastical persons , their patrons and ordinaries ioyning together , cannot make any good exchaunge of Ecclesiasticall benefices . 4. That the Statute of Mortmain is most strict , and pregnant in words .

The Diuisions and principall contents of the seuenth Dialogue , of Deuises , and Legacies .

The first Diuision . 1. THe antiquitie of wills . 2. Plato his exception against Solons Law concerning wills . 3. Solons law is mainteyned and defended agninst Plato .

The 2. Diuision . 1. Such as be vncapable of inheritances and goods , may not be deuisees , heires , or executors by the Ciuill law . 2. A difference in the Ciuill law betwixt the making of a deuisee , and the making of an executor . 3. That by the Common law all persons to whom a grant may be made , a deuise may be made vnles it otherwise happen in some fewe cases . 4. That the deuisee must be a person capable of the thing deuised . 5. That by the Common law the deuisee ought to be capable at the time of the death of the deuisor .

The 3 Diuision . 1. That by the Ciuill law all such things may be deuised as the testator hath in his own right at the time of the deuise . 2. The three degrees of a testament by the Common law . 3. A difference in the Common law where a man deuiseth a thing whereof he is not seised , particularly and by name , and where not . 4. That things which are not in esse at the time of the deuise made , may be deuised . 5. That the deuise of tenant for life , or tenant in dower of the corne growing at the time of their death is good . 6. That when the partie hath a certaine and lawfull interest in a thing , he may lease it , grant it , or deuise it before the existence of it . 7. That a deuise may be vncertain , but yet good in Law , because it may by speciall meane be reduced to certaintie .

The 4. Diuision . 1. That by the Ciuil law Ius accerscendi taketh effect in legacies . 2. Whether when the sixt part of a thing is deuised , the heire or executor is compellable by the Ciuill law to diuide it , or to render in value . 3. That by the Common law sometime there may be a seuerance of the thing deuised , sometimes of the profits or of the aduantage of the thing .

The 5. Diuision . 1. That if a man deuise a plot of ground whereupon a house is built , the house also passeth . 2. A house built vpon land entayled after the gift shall be recouered in a Formedon .

The 6. Diuision . 1. That by the Ciuill law , when an especialty conteyning a det is deuised to one , the debt it selfe passeth . 2. Master Parkins his opinion touching the diuising of an Obligation is examined .

The 7. Diuision . 1. That by the Ciuill Law the executor is bound to make good the thing which perisheth through his default . 2. That in some cases the time of performing legacies is left to the discretion of the Iudges . 3. That by the Common Law the executors are bound to performe the deuise in conuenient time . 4. A diuersity betwixt an obligee & a deuisee .

The 8. Diuision . 1. That things which are accessory do pass with their principal 2. That a mine of coale passeth with the land if it be ioyntly vsed with it , otherwise it is if it be seuerally vsed . 3. That a woman shall be endowed of a mine of coale discouered after the husbands death 4. That words of the Present tense in a deuise may not be extended to the Future tense .

The 9. Diuision . 1. That by the Ciuill law , if the deuisee of a terme die before the deuisor , the executor shall haue the terme . 2. By the Common law a diuersity is taken where the deuisee dieth in the life of the deuisor , and where after his death , but before the legacie executed .

The 10. Diuision . 1. That by the Ciuill Law , when a thing is deuised to God or to Christ , it shall go to the Church of the Parish where the testator dwelt . 2. That by the Common law , and by the statute of 23. H. 7. such deuise is void . 3. What is meant by a Church parochiall according to Rolfes opinion .

The 11. Diuision . 1. That by the Ciuil law , where two testaments contain in them seuerall sums , that which conteyneth the lesser shall stand , but by the Common law the latter testament .

The 12. Diuision . 1. That by the ciuil law if an oxe be deuised to one , & he die , the skin is due to the deuisee . 2. That by the common law it seemeth to be due , otherwise it had bin if there had bin an exception of the hide .

The 13. Diuision . 1. That if the reconusor deuise all his goods to the counsee , yet he shall haue execution of the land . 2. If the obligee make the obligor his executor , the debt is extinct .

The 14. Diuision . 1. That by the Ciuill law , if a man ordeyne by his will , that his daughters shal mary by the appointment of Titius , that Titius his executor may dispose of this mariage . 2. That by the Comon law where a confidence is reposed in certeyn persons it is incommunicable to others .

The 15. Diuision . 1. That by the ciuil law deuises are construed for the most part most fauorably for the deuisee . 2. That the common law so fauoreth deuises that it vpholdeth equity , & the corespondency of reason . 3. That the Common law frustrateth these deuises which are repugant to law .

The 16. Diuision . 1. That by the Canon law , if land be deuised to a woman whilest she shall liue chastly , her mariage is not implicatiuely & absolutely prohibited . 2. That the Ciuil law & Comō law do fauor mariage .

The 17. Diuision . 1. That there is a diuersity in the ciuil law , where a man maketh his wife vsu fructuariā of his goods , & where he deuiseth thē to her 2. That by the common law the administration of the goods and chattels of the testator doth appertaine only to the executor .

The 18. Diuision . 1. That by the Ciuill law the husband may demand a legacy due to the wife without naming the wife . 2. That in the Common law , there is a diuersity , as touching bringing of actions in the wiues name where the matter of the writ is reall , & where it is personall . 3. That where the wrong doth immediately concerne the person of the wife , the wife of necessity must be named .

The 19. Diuision . 1. That by the Ciuill law , when maintenance is deuised to one till ripenes of age , is intended of full age , 2. The diuersity of ages by the comon law .

The 20. Diuision . 1. That by the ciuill law when a mansion house that is in one parish is deuised , the apurtenances in another parish do passe by the deuise . 2. That by the Comō law land cannot be appurtenant to land .

The Diuisions and principall contents of the eight Dialogue , of borrowing and lending .

The first Diuision . 1. THe difference in the Ciuill law , betwixt mutuum and commodatum .

The 2. Diuision . 1. That particular persons , corporations , & churches parochiall may be bound by contract of borrowing & lending by the Ciuil law , 2. That by the comon law Abbots , Priors , & such religious persons might charge their house by their contract , & by recognisans .

The 3. Diuision . 1. Two kinds of borrowing & lending by the Ciuill law , naturall & ciuill . 2. That the comon law acknowledgeth this difference in substance & effect .

The 4. Diuision . 1. An vsurous lending or lending of mony for interest is by way of obiection mainteyned . 2. Aquinas his authority is vrged for proofe hereof . 3. The obiection is answered by the Canonist . 4. Aquinas his authority disproued . 5. The Ciuill law in condemning vsury agreeth with the Canon . 6. The comon law in this agreeth with the other lawes .

The 5. Diuision . 1. A diuersity in the Ciuill law , when money is tendered at the day of payment & is after embased , & when it is tendered after . 2. To the aforesaid diuersity the Comon law seemeth to agree .

The 6. Diuision . 1. That by the bond of the surety the principall debtor is not discharged by the Ciuill law . 2. That by the comon law as well the one as the other may be sued .

The Diuisions and principall contents of the ninth Dialogue , of the baylement and deliuery of goods and chattels

The first Diuision . 1. THe definition of depositum at the Ciuill law . 2. The nature and course of it at the Common law , 3. A diuersitie where a writ of account of detinue & of trespas are to be brought concerning things deliuered at the Common law .

The 2. Diuision . 1. That a thing cannot be said to be a depositum at the Ciuill law except it be deliuered to the party . 2. That by the Canon law the feoffee of the land is to haue the charters when the feoffement is without warranty .

The 3 Diuision . 1. That the baily is not to be charged with the losse of the goods which happeneth meerely by casualty .

The Diuisions and principall contents of the tenth Dialogue , of the forme and maner of ordinarie proceeding in matters of Law .

The first Diuision . 1. THe things which are to be obserued of the plaintife at the beginning of a suit by the Ciuill law . 2. Citation is proued to be of the substance of the proceeding , contrarie to the opinion of some Ciuilians . 3. The cautles to be obserued at the comon law in the comencement of an action . 4. Disablements in the persons of the pl. at the comon law . 5. The statut of 23. H. 8. of giuing damages to the def . is compared with the rule of the Ciuill law . 6. Suit must not be mainteyned before an incompetent Iudge according to the comon law . 7. The seuerall iurisdiction of diuers courts is described 8. That the summons of the party def . is necessarily exacted by the comon lvw . 9. That by the default of lawfull summons the proceeding of the pl. is frustrat by the Common law .

The 2. Diuision . 1. That by the Ciuill law , if a man be bound to appeare within ten daies , the tenth day is taken inclusiue . 2. That the first day and fourth day of appearance are all one by the Common law .

The 3. Diuision . 1. A diuersity of opening and prosecuting of priuat & publike offences at the Comon law . 2. Exception is taken to informations vsed by comon informers . 3 Many obiections are made out of the Ciuill law against comon informers . 4. Punishments ordeyned by diuers Emperors against comon informers . 5. Codicgnostes is charged by Anglonomophilax to mistake the point in question . 6. He is likewise charged to mistake the Ciuill law in this point 7. The statut of 18. of our Soueraign Lady the Q. is compared with the edicts of Emperors . 8. Codicgnostes his surmise that informations were not vsed in the best times of the Romans , is aunswered and confuted . 9. It is shewed likewise that informations are expedient for the administration of Iustice .

The 4. Diuision . 1. Defaults are dispensed withall by the Ciuil law , when they happen by the Act of God .

The 5. Diuision . 1. The most common action in the ciuil law is actio iniuriarum which is either Ciuilis or praetoria . 2. Actions & enditements at the common law are compared with ciuill & pretorian actions .

The 6 Diuision . 1. The libel of an action of iniuries is fully set down according to the form of the ciuil law . 2. exception is taken to the form of the libel for vncertainty . 3. the exception is approued by the comon law . 4. exception likewise is taken to the libel for mingling things of diuers & seueral natures in it . 5. this exception likewise is mainteyned by the comon law . 6. an other exception is taken for the superfluous alleaging of the day & houre of the trespas don . 7. exception also is taken for vsing too many words in describing the wrong . 8. exception is taken for saying nemini iniuriam inferendo . 9. exception is likwise taken for vsing these words ( animo iniurioso ) being take for a surplusage . 10. Codicg . answereth the exceptions . 11. Angl. particularly examineth & discusseth the exceptions . 12. Angl. excuseth & defendeth the aboundance of words in declarations & libels . 13. the forme of a declaration vpon an action vpon the case , resembling actinnē iniuriarum . 14. the cutting off of delaies by the Ciuill law . 15. the diminishing of delaies by the comon law . 16. the forme of a defence or barre in an action of iniuries . 17. the forme of a defence in an action vpon the case . 18. the forme of a trial by the Ciuil law . 19. the forme of a trial by the comon law . 20. the forme of iudgement in the ciuil law , 21. the forme of entring iudgement at the Common law .

The 7. Diuision . 1. That by the ciuil law an action of iniuries will not lye by the executor against the executor . 2. that by the comon law actio personalis moritur cum persona . vnlesse it be in some speciall cases .

The Diuisions and principall contents of the eleuenth Dialogue , of common wrongs and trespasses .

The first Diuision . 1. THe diuerse kinds of iniuries in the Ciuill law . 2. what an assault is according to the common law . 3. that the comon law giueth an action vpon the case for a slander .

The 2. Diuision . 2. That by the Ciuil law an action of trespas lieth for the father , husband , master , for a wrong don to the sonn , wife , seruant . 2. That by the common law the husband may haue an action for a wrong done to his wife . 3. In what cases an action will lye for the master for a wrong don to his seruant . 4. In what cases by the comon law an action will lye for the father for a wrong done to his sonne .

The 3. Diuision . 1. How the owner shall be punished by the ciuill law for a trespas don by his beasts . 2. In what case he shall not be punished though his beasts do hurt to an other man . 3. That by the Common law a man shall be punished for a trespas don by his beasts .

The Diuisions , and principall contents of the twelfth Dialogue , of vnlawfull assemblies , riots &c.

The first Diuision . 1. THe description of publike force by the ciuill law . 2. That in the matter of publike force the comon law agreeth with the ciuil . 3. A difference by the Comō law betwixt publike force & open force . 4. The punishment of publike force by the ciuill law . 5. That by the comon law the councellors & committors of force are a like punished . 6. What an vnlawful assembly is by the Comon law . 7. what a rout is . 8. what a riot is . 9. The punishmnt of the aforesaid offences by the Canon law .

The 2. Diuision . 1. The punishment of the Iustice not punishing such offences by the Ciuill law , 2. That the Iust . of Peace by the Comon law are punished for remissnes of punishing others for the aforsaid faults .

The Diuisions and principall contents of the thirtenth Dialogue , of Treason and Rebellion .

The first Diuision . 1. THe reason is shewed by Codicgnost . wherfore treason is aptly tearmed a fault against the dignity of man . 2. The punishment of treason in ancient times .

The 20. Diuision . 1. The diuers kinds of treason by the ciuil law . 2. The diuers kinds of treason by coyning of mony in the Ciuill law , 3. The punishmnts of traytors by the Ciuil law , 4. The seueral coyns of forein princes in ancient time . 5. The diuers kinds of treason by the Common law 6 , How far forth this word ( Ligeance ) doth extend by the common law 7. How the Queenes enemies are to be punished by the comon law agreeing with the Law of God . 8. How enemies are punished by the canon law . 9. How breaking of prison is taken in the Comon law , 10. How treason is committed by coyning of mony according to the censure of the Common law . 11. The seuerall punishments of treasons by the Common law .

The Diuisions and principall contents of the fourtenth Dialogue , of Homicide , that is murder , manslaughter , &c.

The 16. Diuision . 1. THe seueral kinds of Homicide by the ciuil law , & first murder is described . 2. Manslaughter se defendendo by the Ciuill law . 3. the description of selfe slaughter by the ciuil law . 4. a diuersity of killing a mans self by the ciuil law . 5. the punishmnt of self slaughter by the Ciuill law . 6. homicide by casualty is described , 7. Angl. taketh exception to the diuision of homicide by the Ciuill law , 8. an other diuision of homicide by the ciuil law , the difference of killing men voluntarily & inuoluntarily , is shewed to be ancient . 9. the difinition of murder by the Comon law , 10. malice wherof murder commeth is shewed to be two fold , & diuers cases are put therupon . 11 the punishmnt of murder by the Common law . 12. ●he description of manslaughter by the Common law . 13. the punishmnt of manslaughter by the comon law . 14. Manslaughter se defendendo by the comon law . 15. the punishmnt of manslaughter se defendendo . 16. homicide by misaduenture . 17. the punishmnt of it . 18. homicide of a mans selfe , & the punishment of it .

The 2. Diuision . 1. Homicide is shewed to be twofold in the ciuill law , Consilij and Operis . 2. By the comon law the counsellor & assister in murder are accompted principall offendors .

The 3. Diuision . 1. Homicide by witchcraft is described . 2. the punishmnt of witches & magicians by the ciuil law . 3. they that haue asked coumsel of witches haue bin in ancient time punished . 4. An obiection is made of exorcisme vsed in the Church . 5. Answer is made to the obiection according to the opinion of Bodinus . 6. the great & strange power of witchcraft . 7. Lucan is comended for his ample disclosing of the detestable secrets of sorcery . 8. the laws of the 12 Tables do condemne witchcraft . 9. Seneca his opinion of charmes & inchantments is disliked , 10. S. Augustine confuteth the opinion of Seneca . 11. It is likewise disproued by Pausania . 12. Witches are proued to bee apostats , & in what maner they become apostates . 13. It is proued that the bodies of witches do work with their minds in lewde enterprises . 14. Alciat his opinion touchind the meeting of witches amongst themselues , & the meeting of the diuel is vrged . 15. Alciat his said opinion is confuted by the authority of Bodinus . 16. A double reason is alleaged , wherfore the diuel worketh not for witches after they be imprisoned . 17. That necromancie & magike was vsed in ancient time . 18. A discourse of the aparition in the likeness of Samuel . 19. The punishment of necromancers & coniurers by the ciuil law . 20. The punishment of necromancers & witches by statute . 21. The punishment of coniurers by the Canon law .

The 4. Diuision . 1. Homicide committed by the Canon law by procuring the vntimely birth of a child , if death do ensue . 2. The ciuil law punisheth such offence whether the child haue receiued life or no . 3 : That though in Bractons time the Comon law did agree with the ciuill & canon laws in the punishment of abortiuements , yet now there is no such punishment by the Comon law .

The Diuisions and principall contents of the fiftenth Dialogue , of Theft , &c.

The first Diuision . 1. THe diuision of theft by the Ciuil law . 2. wherfore the word fraudulent is vsed in the definition of theft . 3. How pettie the euery is punished by the ciuil law . 4. how the stealing of things of greater value is punished by the ciuill law . 5. what is felony by the canon law , and what pettie larceny .

The 2. Diuision . 1. Receiuors & theefes haue the like punishment by the Ciuill law , but yet with many diuersities & limitations . 2. how the receiuors of heretikes & other offendors are punished by the canon law

The 3. Diuision . 1. The description of robbery by the ciuil law . 4. the punishmnt of robbery by the said law . 3. The punishment of robbery by the canon law . 4. the description of robbery according to the comon law

The 4. Diuision . 1. What kind of housebreach is capitall in the Ciuil law . 2. the definition of burglary by the common law .

FINIS .

THE SECOND PART OF THE PARALLELE , OR CONFERENCE OF the Ciuill Law , the Canon Law , and the Common Law of this Realme of England .

WHEREIN THE AGREEment and disagreement of these three Lawes touching diuers matters not before conferred , is at large debated and discussed .

Whereunto is annexed a Table contayning the principall Questions , matters , and pointes of the Dialogues ensuing .

Handled in seauen Dialogues , by WILLIAM FVLBECKE .

LONDON Printed by Thomas Wight , 1602.

A Table of the seuerall titles of the seuen Dialogues ensuing . 1. Of Prohibitions and Consultations . fol. 1 a 2. Of Actions vpon the case . fol. 16. a 3. Of Debts . fol. 27. b 4. Of Accomptes . fol. 41. b 5. Of Waste done in a mans ground . fol. 49. b 6. Of Parceners . fol. 55. b 7. Of Conditions . fol. 58. b

TO THE MOST GRATIOVS AND Reuerende Father in God , Iohn by the prouidence of God , Lord Archbishop of Canterburie , Primate and Metropolitane of all England , and one of the Lords of her Maiesties most honourable priuie Counsell .

RIght reuerend , and right honourable , it is now a twelue-month past sithence I presented to your Grace a comparatiue discourse of the lawes : A subiect deseruing the industrious search of some diuing braine , by mee superficially handled , and as it were left to others to be complementally perfected : but sithence by good successe and the fauour of the Almightie it hath gained the approbation of men skilfull and learned , who haue perswaded and encouraged mee to make further progresse in this businesse , least I might seeme coy in weighing lightly their frendly speeches , & careles in refusing so important a taske , though to me importable , as being the club of Hercules laid vpon the sholders of Hylas , I haue again aduentured vpon this cumber some prouince , and drawne other furrowes in this stony soile : and as I haue continued the worke , so haue I continued the dedication thereof in all constant obseruance to your Lordship , whose regardfull countenance toward me hath merited more at my hands then such worthlesse paines , rather by the trauaile of my pen , and the practicke of my contemplation , to publish and notifie to the worlde my dutifull thankfull and zealefull affection toward your graces person , then by the vnfeatured lumpe and disproportioned bearewhelpe of my misconceyuing , & miscarying endeuour , to platforme a consummate and exemplarie Parallele or Trinomion , which is an obiect to be aymed at , and a pray to be pursued ; not of the Stonegall , the Muskette , and the Merlin , but of the Eagle , the Goshauke , and other birdes of an higher wing , and more surmounting flight : and for the accomplishment thereof it were to be wished , that God would vouchsafe our Innes of Court with some second Budaeus , that is a third Varro , whose skill in the lawes might bee exquisite , whose paines extreme , whose reward excellent : for mine owne parte though I bee rather a rash then a voluntarie soldier in this campe , yet I am bound by conscience not to eate the bread of idlenes , to do for my country what I can , and to labour in my calling as I may . And whatsoeuer this Booke is , or whatsoeuer my selfe am , or whatsoeuer my prayer may preuaile with Almightie God , all these , if these be anie thing , doe with the knee of submissiue reuerence professe vassallage to your Lordship . And if the Heauens would sympathize with my hart , and my hart should not by pleasing my selfe , and others , displease your Grace , the verie Heauens should be long without you , that this land may be long the better for your Lordship . The God of heauen graunt this , if it be his will , for Learninges sake , Quae duplices tendens ad sydera palmas , prayeth for the same : Vertue prayeth for the same : Straungers pray for the same : Beneficence to the riche : Munificence to the poore , craue the same : The Church with sacred vowes : The Common weale with more then common wishes implore the same . What period can be better then prayer ? Therefore here I cast anchor , and bind vp these spreading lines .

Your Graces most humble to commaund : WILLIAM FVLBECKE .

The Introduction to the second part of the Parallele , or conference of the Ciuill Law , the Common Law &c.

NOmomathes , when the first conference of the three Lawes was finished , gaue himselfe to his recreation , which was the hunting of the Bucke , an exercise commendable for Gentlemen , and vsed in auncient time of them , whose high estates had entitled them with the names of Heroes , & Semidei . But when winter began to shed his cold influence , and to replenish the aire with congealing vapours , to make the earth as it were a naked beldam , and to cause the dugges of the sea to swell with surging billowes , Nomomathes retired to his bookes , and gaue a farewel to the fields , betrothing himselfe that winter to his studie . And because the iuice of the late conference of the Lawes had turned to good bloud in his mind , he meant to recontinue the conference , of which he had a more strict regard then of the former : For when it was rumord in the countrie where Nomomathes dwelt , that such a conference was had : and afterward certain copies were dispersed , and diuulgated , some were wel pleased , some were discontented with the Dialogues : Pro captu lectoris habent sua fata libelli . Amongst the rest that were discontented was a Parson , a plaine countrie man , and a gentle man not vnlearned , who when they had heard , that Nomomathes meant to reuiue and recontinue the conference , purposed to go to his house , and to open their mindes as they conceiued of the conference . Their purpose they followed , and to the house they came , where beeing kindly and curteouslie entertained of Nomomathes , and in their by-talke glauncing at the Dialogues : Nomomathes willed them to spare no speech , and professed that hee would willinglie admit their censures , and that he would heare them in order : They seeing his patience prepared , deliuered in few words their priuate conceits . And first the gentleman tooke exception to the discourses of Codicgnostes : for that he in the first Dialogue , discussing matters of common weale , and of the Ciuill Law , did forget to handle verie important matters , and to his profession not impertinent . The first was because hee did not treat of Dettes , a thing in the Ciuill Law not omitted : and yet in no Law sufficiently debated . Secondly , he speaketh nothing of Accompts or reckonings , wheras that is a large and frequent title in the Ciuill Law . Lastly speaking ex professo of the originall of Tenures and seruices in the fourth Dialogue , he speaketh verie little of Conditions , which verie often are the constituent causes of these Seruices : With this he concluded , and then spake the Parson , who did expostulate with the Canonist some iniuries , because the Canon being so full and pregnant in matter of Tythe , hee did not vouchsafe to speake anie one woord of Tythes : And whereas we haue Parsons said he , haue much impediment by Prohibitions , and many times wrong , when they come to triall : for the countrie people which are the Iurors , who haue no more desire to paie their Tythes , then the Diuel hath to lose his entercourse with the seauen deadly sinnes ; the Pope to be a Protestant , and a Beare to go to the stake . If any Prohibition concerning Tythes come to be tried by them , ar as sure to passe against the Parson , as an old chimney is sure of blacknes . But let any matter come to be tried touching common , which concerneth themselues , and their owne profit , they will as surelie go with the commoner , as the cloudes goe with the Northeast wind : Therefore it seemed to him to be verie conuenient , that because the Canon doth so much fauour Parsons , that therefore the Canonist especially should haue debated at large of these matters : And he thought the Canonist speaking so little of them in the whole discourse , was much troubled with the tooth-ache , ( the Canonist here being somewhat cholericke interrupted him , and said he iangled : for he said there were manie thinges proposed in the Dialogues , which the Canon Law neuer medleth with all , neither hath it so much tasted of them , as the dogge licking of Nilus : And in some thinges which were in the Dialogues , the Canon Law hath nothing els , but which the Ciuill Law hath : so that he should not haue kept decorum , but should haue thrust his sicle into the haruest of Codicgnostes , if he should haue encroched vpon such thinges , as the Canon Law hath as it were at the second hand streined from the Ciuill . But , said he , as touching Tythes , if any question had been proposed , I would not haue been defectiue in the handling them at large . Then the poore Countrie man made a lowe conge , and Nomomathes bowed vnto him , as being willing to heare him . Sir ( quoth he ) I am by your worships fauour a poore countrie yeoman , dwelling neare a place called Aitipolis : and my yeares are more then my knowledge , my patrimonie better then my education , and my hand more nimble then my toong : And I haue had a verie great desire to haue some vnderstanding of Lawe , because I would not swim against the streame , nor be vnlike vnto my neighbours , who are so full of Law-points , that when they sweat , it is nothing but Law ; when they breath , it is nothing but law ; when they neese it is perfite law ; when they dreame it is profound law . The booke of Littletons tenures is there breakfast , their dinner , their boier , their supper , and their rere-banquet : Euerie ploughswayne with vs may bee a Seneschall in a Court Baron : Hee can talke of Essoines , Vouchers , Withernams , and Recaptions : And if you controll him , the booke of the Groundes of the Law is his portesse , and readie at his girdle to confute you . Surelie sir , my neyghbours are full of sension and tention , and so cunninge , that they will make you beleeue , that all is gold , which glistereth : So that for a man to be amongest them , and to haue lyuing and want Law : is as if a man should haue bread to eate , and want teeth to chew it : Which occasions mooued me at the first to seek for some skill in Law , and amongest other bookes , I bought The Conference of Law , whereof hath been spoken , and casting mine eie vpon the diall of common wronges , and trespasses : I wondered that he which maintaineth the Common Law , amongest his common wronges and trespasses , he spoke nothing of Wast done in a mans ground : and verie little of an Action vpon the case , which is a wheele much turned about in the place where I dwel . And though hee hath deliuered much of Iointenants , and Tenants in common , he speaketh either little or nothing at all of Parceners . Now manie of vs countrie people marrie verie often with landed women , and therefore would gladly be seene in that learning . Truely Sir I bought the booke for my more vnderstanding of the law , and for the noueltie , and because it was in English : yet there is a vengeance deale of Latin in it , which put mee to the cost to buy a Thomases Dictionarie , but it is no great matter for that , for it wil serue my sonne Reginold , when he shall bee tenne yeares olde , or thereabout : But I pray you sir at the next conference let vs haue somewhat of these matters , which I haue mentioned vnto you : When hee had ceased to speak , Nomomathes grauely and with aduise censured their censures , and spoke in this manner . I see now ( saide he ) the prouerbe to be verified Quot homines tot sententiae . there be as many minds as there bee men ; And though ye haue deliuered your exceptions in sportfull manner , which as I doe not greatly dislike , so I do not greatly delight in , yet I must confesse euerie of them doth flie to the marke , and the blame resteth vpon me , who might haue proposed these matters to be discussed ; but because the lucre , or losse of the conference , was to redownd wholly to mee in all correspondencie of reason , and not to others , but by my curtesie : I thought it a more conuenient course , and more free and ingenious to follow the threed of mine owne choise , then the vncertaine winge of popular conceit . Againe , all things cannot be handled at all times , and nothing is to be intruded into such a conference which doth not relice to the sundrie palates , and tastes of these seuerall lawes . For many things there be in the common law which hath not any affinitie with any thing in the ciuill or Canon . But because your motions are so consonant to reason , & so directly respectiue to your vocations and functions , which in no well ordered common weale ought to be loosely regarded : therfore I protest vnto you in sinceritie , that if all these things , which you haue mentioned may be cast in the molde of a tripartite discourse , the second conference shall bring forth that which you haue before conceited , they thanking him for this kindnesse departed , he immediatly questioned of the Lawyers , whether they could bring into the compasse of their seuerall reckonings all these matters abouesaid , who anusweared that they could . Then said he , because the Canonist hath bene so deeply charged , we wil begin with tiths which he is reproued for omitting . Thē the Canonist said , that they might be discoursed vpon according to the seuerall lawes vnder the title of prohibition . That title thē said Nomomat . shal be the first : the second of actions vpon the case : the third of debts , the fourth of accounts , the fift of wast , the sixth of parceners , and the seuenth of comditions , wherfore bend your selues wholly to this taske , and let these things be diligently searched & considered of you , and for this purpose take the deliberation of twentie daies : which being had , and the twentie daies being run out , Nomomathes did thus parle with Canonologus .

The first Dialogue of the second part of the Parallele , or conference of the Ciuill Law , the Canon Law , and the Common Law of this Realme of England . Of Prohibitions and Consultations . NOmomathes .

I am verie desirous Canonologus , to know the first and primigeniall existence of Tythes : 1. The originall of Tythes is inquired of . that their originall being knowne , their lawfulnes , and necessarie vse may appeare , which hath not seldome by diuers obiections and quarrellous surmises been shaken , and some haue engaged themselues so deepelie into this controuersie , that they haue suffered great affliction therefore , if not losse of life .

Canonologus .

2. The councell of Constance is said to haue condemned Wiclif , for holding Tythes to be pure almes . It is true : And amongest the 189. Articles of Wiclif , condemned by the Councell of Constance , that was noted especiallie to be erronious , that he held Tythes to be nothing else , but pure , and frank almes : and that the Parishioners might withhold them from their Pastors , if they were wicked men : And for that especiallie he is said to haue been burnt Rebuff . in tractat . de Deci . 5. qu . : for that which belongeth to God may not at mans pleasure be derogated , detracted , or diminished .

Nomoma .

Yea , but how doe you proue that they belong to God ?

Canonol .

I can easilie prooue that by their originall and lawfull institution of them , 1. The originall of Tythes is demonstrated to be by the Law of God . which was thus : God hath set downe this rule in Exodus : Decimas & primitias tuas non tardabis offerre Exod . c . 22. . And in Leuiticus more particularlie he hath appointed the payment of Tythe : Omnes decimae terrae , siue de pomis arborum , siue de frugibus , domini sunt , & illi sanctificantur Leuit. c . vlt . . Neither is that dissonant which is written in the Prouerbes of Salomon : Honora dominum de tua substantia , et de primitijs frugum tuarum da pauperibus Prouerb . 3. . Tythes certainlie are God his tributes ; 2. God his deputies for the receit of Tithes are set downe . and as the Canon saith , are giuen him in signum specialis dominij c . cum non fit eod . . And it is likewise set down , who should be God his deputies for the receit of such Tythes : Filijs Leui dedi omnes decimas pro ministerio quo seruiunt mihi in tabernaculo foederis Numb . c . vlti . . The reason is set downe by Ezechias : Vt possent vacare legi Dei 2. Paralipo . c . 13. . And by the apostle Paul : Qui altari seruit , de altari viuere debet 1. Corinth . 9. . And of paying Tythes , 3. The Heathens which knew not God , had great regarde of paying Tithes . the verie Heathen which knew not God had great regarde , as may appeare by Plinies report , where he saith , That Frankensence being gathered , was conueyed on Camels backes to Sabola , there being but one way to carie it , and to go out of that waie was capitall , and at the gate which was at the end of the way , the Priestes did receyue Tythes of the things that were caried for their God called Sabis : which Tythe or Tenth part they tooke by measure , not by weight : And before such payment of Tythe , there was not permitted any merchandize of them Plini . lib . 12. c . 14. . And the Romanes did paie such a Tithe vnto Hercules . 4. Lucullus is specially commended for paying Tithe . And they accompted Lucullus , who was verie skilfull of their Lawes and customes to haue been greatlie increased in his wealth and stocke , especiallie for this , because in the due performance of his Tithe , he was alwaies diligent and exquisite Alex . lib . genia . 3. c . 22. . And when Veios being taken , gold should haue been sent to Apollo of Delphos , in the name of the Tenth of the pray which Camillus had vowed vnto him , 5. Camillus is likewise commended for his diligence in procuring Tenth to be paid . and in the treasurie there was no great store of gold for that defrayment , the Romane nations brought into the treasurie as much golde of their iewels and ornaments , as did serue for that purpose : rather hauing regarde of publike duetie , then priuate profite Liui . lib . 5. . And Plinie likewise testifieth , 6. The Rom●●e● carefull in paying first fruites . that the Romanes did not taste , nor make anie vse of their new corne or wine , vntill they had giuen their first fruits vnto the Priestes Plini . lib . 18. c . 2. . And Pharao in the time of the great famine of Aegypt did allow to the Priestes a certaine liuelode of corne out of the barnes Genes . 47. , which is not discrepant from the ordinance of God , as it is set downe in the prophecie of Malachie : Inferte omnem decimam in horreum meum , vt sit cibus in domo mea , & probate me super hoc Malach . 3. . Certaine it is that they which dutifully and plentifully pay their Tythes without fraude and miserable pinching , or malicious quarrelling with their Pastor , or Curate , do more florish and prosper in their wealth , substance , and their profits of the earth , then such as prophanely and iniuriously deteine them : Cura dijs dij sunt , et qui coluere colentur . Ouid . in Metamorph . And there is a good similitude or obseruation collected by Rebuffe vpon the affliction of the Philistines , that whilest the Philistines withheld the Arke of God , they were punished with manie scourges , penalties , and corrections : For the fruites of their fieldes was deuoured of the Mise , and Locustes : and so he saith , that the lay people as long as they with hold the lawfull Tythes from their Ministers , shall be with diuerse losses and crosses afflicted Rebuff . tractat . de Deci . qu . 15. .

Nomomath .

If Parsons ought to haue tithes as you haue plainely proued , then they ought to be contented therewith and not to haue any lands or tenements , which now they haue : for as there is an affirmatiue precept in the law of paying tithes : 1. Whether Parsons ought to haue no more liuing then tythe 2. It is denyed by Canonologus that they ought to haue no more liuing . so there is another negatiue ordinance that the Leuites should possesse nothing els .

Canonol .

But that negatiue law was not made to be perpetuall , as may appeare by the last Chapter of Leuiticus & by the 27. and likewise by the 25. Chapter , where it is expressely said . Domus vrbium Leuiticorum pro possessionibus sunt inter filios Israel , suburbana autem eorum non veneant , quia possessio sempiterna est .

Nomomath .

Whether by your law may a man prescribe in not paying tithes .

Canonol .

No man by our law may prescribe in not paying tythe : Dom . in c . 2. col. ill . de prae . in . 6. and a man is bound to pay tythe though by an hundred yeeres hee haue not payed , because if it be an offence to pay slowlie , it is a greater offence not to pay at all : c . decim . in princip . 16. qu . 1. and the longer the tythes are with-held , the offence is so much greater , because as the reason of our law is : diutius detinent infaelicem animam alligatam : c . fin. de consuetu . but a Layman may prescribe in paying a speciall portion in lieu of the whole tythe as to pay the twelfth part , or the twentieth part . Part . paris-consil . 25. vidiat . 3. nu . 21. vil . 4 Yet if the Minister or Curate may not be maintained by the residue of the Tythes , he may sue for the whole Tythe Angel . clauus in versic . 10. . And if there be a composition betwixt the Curate , and his Parishioner , that hee shall pay no tithe this composition is meerly void : otherwise it shold be if the composition had bene that he should pay a certaine portion of tythe , as the sixtenth or twentith part , or that he should pay no tythe for certain things : for though the composition were before the Bishop , yet it could be no otherwise : Text in c . venerab . de confir . vtil . yet according to our law the Bishop may by way of composition alter the place or time of paying tythes .

Codicgn .

To this which you haue said our law agreeth , & we haue an expresse rule : 2 The ciuill Law agreeth thereunto . sacerdoti petenti decimas non potest obijci compensatio . Ludouic . de Rom. in singular . and the reason is because fisco petenti tributa non potest obijci compensatio l. 3. & 4. c . de com . pen . le . aufert . §. qui compensati . ff . de iu . fisc . . Therefore muchlesse may compensation be obiected in tythes , quae deo debentur . Gazalup . in ver . Decim .

Anglonomop .

But by our law if a man graunt parcell of his mannor to a parson in fee to be discharged of tithes , 3 By the common law a man may prescribe in paying a temporall recompence in lieu of tithe . & he maketh an indenture therof , & the parson by assent of the ordinarie graunteth to him that hee shall be quit of the tythes of his mannor for this parcell of lande , now if he be impleaded for the tithes therof he may haue a prohibition , and if this deed haue bin made from time out of minde , and he hath bin continually quit of the tythes of that mannor he may haue a prohibition in such case , if he be impleaded : and so likewise it is if such discharge grow by reason of a composition . Fitzher . N. B. 41. G. 43. K. 8. E. 4. 13.

Nomomath .

I pray you let me know in what cases tithes are recouerable at the spirituall law , and when at the common , that so I may perceiue the diuersitie of the iurisdiction of these Courts , which in it self seemeth to me to be somewhat perplexed & difficult , vnles it be opened & explaned by cases accommodate to the purpose .

Canonol .

There be two sorts of tithes , being parcel of the inheritances & possessions of laye men of the first by your fauor I will speak first ,

1. Two sorts of tithes are set downe by the c●nonist : some feudall , some Ecclesiasticall .

2. The Church onelie holdeth conusans of the right of tithes .

3. The King of Fraunce his edict touching tithes is set downe .

4. When the question is facti and not iuris the examination of tythes may belong to a lay iudge .

& then discend to the other : when the right of tithes is in question , because that is a meere ecclesiasticall subiect , the church hldeth conusance , gl . in c . ex tenor . de for , compe . & there is an edict made by Phil . the 4. K. of France touching tithes in this manner . De cognitione decimarum non feudalium in petitorio vel postestorio , praesertim inter ecclesiasticas partes , gentes nostrae se nullatenus intromittant . Rubric . de decim . And this is according to the rule of our law de causa spirituali solus ecclesiasticus cognoscit vbi quaestio fit iuris . c . tuam de ordin . cogniti . but where the question is facti , & not iuris the examination of the cause may belong to a laye iudge . Text in Clē . dispendios . de iudicum c . teter . de iur . calum . c . fin. de rer . permut . but if the controuersie be mixt , and the propertie is as wel to be decided as the possession , the matter is to bee discussed before an ecclesiastical iudge , Abb. c . literas & rubric . de iudic . num . 51. & when tithes are leased or dimised vnto a man , he may demand the tithes before a lay iudge , vnles there be contraria fori praescriptio , as there is in the citie and diocesse of Millaine : Gemin in c . vlt . in fide for . competen . in 6. gloss . in c . vest . de loc . monet c . 8. de decim . yet where the controuersie is betwixt these that be meere clergy men , though it be a possessory suyte , yet it is to bee decided by an Ecclesiasticall iudge Nauar . in repet . cum contingat . . Neyther may lay men be compromittes of a decimall cause if the right come in question : Concil . Barel . tract . moder . de compromis . §. 2. gl . 1 num . 324. but such tythes as be not spiritual , Clergie men though it be meerely possessorie : yet it belongeth to an Ecclesiasticall iudge . but as I haue termed them before feudall , may be ordered and disposed by lay compromittees .

Nomomath .

You haue satisfied me Canonologus touching the point of Ecclesiastical iurisdiction where spirituall tythes are to be demaunded : Now I pray you shew me the nature and original of these feudall tythes , which as yet are more obscure .

Canonol .

Their nature shall appeare by their originall which was thus .

1. The nature of feudall tythes is opened by the Canonist .

2. Charles Martell is accused of Church-pillage .

Charles Martell after that he had obtained an happy victorie against the Saracens , who marching from Spaine did spoile and waste the lands , goods , and temples of the French , did meane to recompence his nobles & peeres of his realme with some great reward , and that hee might testifie his liberalitie towards his said nobles , by the consent of the Bishops of his kingdome , he did giue vnto them the tythes of manie goodlie Churches , taking a solemne oath that if he liued any while , he would make the Church a large amends for this matter , which notwithstanding hee did not : but not long after , as ( Guagni reporteth ) for that sacriledge he died , and was carried to hell , and his bodie being intombed in the temple of Saint Dennis , within a few yeeres after there was seene vpon his graue a great serpent , 3. The Canon●●t ●●●eth a strange take of Charles Mar●●ll . it might be it was the diuell in the likenes of a Serpent : but shortlie after there was neither bodie nor bones of Charles found in that place , and therefore some thought that hee was carried bodie and soule to the diuell : Guagni . in vlt . Car . Martell . for that cause the wiseman hath said , it is a destruction for a man to deuoure that which was sanctified , &c. Prouerb , c . 20. v. 25.

Nomomath .

It is not good to enter into the counsailes of the Almightie . The Bethshamites were not vnpunished for their prying into the Arke . And the prouerbs of the heathens doe admonish vs not to bite the dead , nor to wrestle with spirits . It is not good to charge the dead with any other thing thē that which happened in their life : for whosoeuer are departed this life stand or fall to their Lord , who is the iudge of the quicke and dead , 4. It is thought of Nomomath . to be but a fable . and I think the report of the serpent to be but a meere fable discrediting the author , and dishonoring that worthie protector of the Christians : but what say you Codicgnostes of these matters .

Codicgnostes .

I doe not remember any thing in our lawe repugnant to that which Canonologus hath aboue deliuered .

Nomomath .

What say you Anglonomophilax .

Anglonomoph .

Our law doth neyther fullie agree with that which Canonologus hath vttered , neither in verie many things disagree from it , as by your patience I shall at large demonstrate . Wee haue a rule in our statute-law not much differing from the edict of the King of Fraunce aboue recited by Canonolog . 5 One of the ancient statutes of England is compared with the edict of the king of Fraunce . In decimis & mortuarijs quando sub istis nominibus proponuntur , prohibitioni nostrae non est locus , dummodo decimarum illarum quantitas non ascendat ad quartam partem bonorum ecclesiae Artic . cler . c . 2. 10. H. 4. 1. Registr . 49. b . : And as to the diuersitie vsed in the Canon law where the question is facti and not iuris , and where it is de petitorio and not de possessorio , 6 The Canon law agreeth with the common , attributing of the deuision of the right of tithes to the spirituall iudge . M. Fitzherbert hath this assertion : that if any parishioner doe disturbe or hinder a Parson or Vicar in the carying away of his tithes , which is an iniurie in the fact , whereas the carriage is through the waies and passages vsed and accustomed , the Parson or Vicar may sue in the spirituall court for this disturbance Fitzh . N.B. 51. A. : for in this case the spirituall Court proceedeth vnto excommunication Registr . 46. b . & 47. a. : One Parson may sue a spoliation against an other in the spirituall Court , 7 Where one parson may sue a spoliation against the other in the spiritual court . for the taking of tithes which belongeth to his Church though they claime by seuerall patrons , and by seuerall presentments , but this is to bee vnderstoode where the said tenth doeth not amount to the value of the fourth parte of the Church , for otherwise the partie greeued may haue an Indicauit because the title of the patronage may come in debate : But if they claime by the presentment of one patron thē a spoliation may be sued although the profits or tithes doe amount to the fourth part , or third part , or the moitie of the benefice : because in such case the title of the patronage shall not come in debate . And if a prohibition be sued hereupon , the partie may haue a consultation 2. H. 7. 12. Br. prohibit . 16. Fitzh . N.B. 51. C. 37. E. 45. B. 30. E. : and if a man haue certaine sheepe depasturing , and lying within the precinctes of the parish of N. within a yeare , the parson of that parish may sue in the spirituall court for the tithe wooll of these sheepe : and if the partie sue a prohibition hee may haue a consultation Fitzh . N.B. 51. D. : for the suite for tithe doth properly appertaine to the spirituall Courte , 8 The executors may be sued in the spiritual court . as by statute it is ordeyned 1. R. 2. c . 13. 24. H. 8. c . 12. 2. E. 6. c . 13. : and it appeareth by the Register of writtes , that if the pattie which withholdeth tithe make his executors and die , the executors may bee sued Registr . 48. . And if a man detaine tithes for his sheep which went in the parish of N. and were depasturing and couching there so long time , if the partie die , the parson may sue his executors for these tithes in the spirituall Court . And so the Parson may sue the executors for the arrerages of tithes due by reason of certaine milnes of the testator in the life of the testator Fitzherb . N. B. 51. G.H. : And the parson by prescription may in the spirituall Court claime tythes virularum & lacticiniarum of the beasts pasturing in his parish , as namelie milke , butter and cheefe Fitzherb . ib . & Regist . 48. , and the tythes of wooll , and the tythes of honie and waxe , Fitzherb . ib . and for these hee may sue in the spirituall Court , and by manie authorities in our law , the right of tythes is tryable in the spiritual Court . 22. E. 4. 24. 38. H. 6. 21. 22. Assis . 75. But where a man is sued for tythes of great trees aboue the age of twentie yeeres , a prohibition will lye by the statute of 45. 9. Of what trees tythe may be demaunded by the statute of 45. E. 3. E. 3. but of horne beames , salowes , and the like , of what age soeuer they be , being not apt for timber , tythes ought to be payed . Ploid . Com . en le case enter Soby & Mol . And the branches of trees which be priuiledged from tythes shall be also priuiledged : and the suit for the tyth branches of trees which are not priuiledged , shall be in the spirituall Court as well as the suit for the tythe of the trees themselues : for as Bracton saith , non pertinet ad iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa . Bract . lib . 5. c . 2. And thus it may appeare , that as soone as the right of tythes commeth in debate , the lay Court ought to cease , and shall be out of iurisdiction : and if it may appeare that the right of aduowson commeth in debate the spirituall Court shall be out of iurisdiction : But if the parson of N. doe lease for yeares a certaine portion of his tythes rendering a rent , hee shall haue an action of Dette for the rent if it be behind at the common Law , 10. That the rent paied for Tythes vpon a lease for yeeres is a lay chattell . and not in the spirituall Court , because the money is a lay chattell 8. R. 2. Iurisdict . 21. D. 5. 106. . And if the Parson take Oates , or other graine , as his Tythe : and an other taketh them awaie from him , the nature is altered , and now they are become a lay chattell , and the Parson shall haue an action of Trespas at the common Law 35. H. 6. 39. : Yea by the booke of 2. Ed. 4. if they be seuered from the ix . part , and not yet in the actuall possession of the Parson : Yet if a stranger carie them awaie , he may haue an action of Trespas 2. E. 4. 15. 20. E. 4. 3. : But he may not in any case distreine for Tythe : for there is not any land in demesne vpon which the distresse may bee made 11. H. 4. 40. . But if in such case debate happen betwixt Parson and Vicar , so that the right of Tythes is to be tried , the suit is to be mainteined in the spirituall Court 35. H. 6. 39. 47. .

Nomomath .

But what if Tythes be not duelie paied , what punishments are there to be inflicted by your Lawes .

Canonol .

In the demaunding Tythes , if iudgement be giuen for the demaundant , there must a precept issue with a monition vnder paine of excommunication , 1. A Precept issueth with a monition vnder paine of excommunication for the due satisfaction of Tithes . if he doe not within a certaine number of dayes pay or satisfie the demaundant so much Tythe . And the Law is that against such as be stubborne , Brachium seculare inuocari potest Gl. in verb . praemonit . in cle . 2. de iud . c . postula sti . de homici . .

Codicgn .

We haue nothing in our Law contrarie to this .

Nomomath .

I pray you shew me Canonol . the qualitie and force of Excommunication , that I may be better satisfied .

Canonol .

The Canon Law doth obserue eight degrees in proceeding to the correction or punishment of them of the Clergie , 1. The degrees which the Canon Law obserueth in punishing offences in the Clergie . in punishing any offence whatsoeuer : The first is a monition , vt desistant c . vni . de vit . et hone . cler . lib . 6. : The second excommunication , si non paeniteant c . cler . arma . de vi . et hon . cler . : 3. A suspension of their benefice , si differant c . praeterea de vsu . : 4. The depriuation of their benefice , si perseuerent c . cum delic . in fin. de accusa . : 5. A suspension of their orders , or degrees , si obstinatè contendant c . cum non ab homi . de in fi . : 6. A thrusting or intruding of thē into a Monastery , or Religious house , si indurati existant : 7. Perpetuall imprisonment , si incorrigibiles existant d . c . cum non ab homine . : 8. A solemne degradation in the presence of temporal officers c . non de verb . in fi . . And this order of punishment is alwaies obserued , vnlesse the crime be so great , heynous , and scandalous , that this solemnitie is omitted , and then there is a summarie , and immediate proceeding to degradation , and to the deliuering of the party vp to the secular power .

But there be two sorts of Excommunication , the lesser is not penall , but medicinall , 2. Sortes of Excommunication , are set downe by the Canonist . & is proporcionable to that lesser thunderbolt , which the Poet describeth : Est aliud leuius fumen cui dextra Cyclopum , Saeuitiae flammaeque minus , minus addidit irae Ouid . in Metamorph . . It doth rather in some small proportion terrifie , then in any great measure hurt . Yet here a distinction is to be vsed : for either the sentence of the lesser excommunication is pronounced ab homine , and then it is medicinable : or els it is pronounced a Canone ; as when a man is ipso facto excommunicate , for then it is penall c . medicinalis de se . exco . lib . 6. . But the sentence of the great excommunication doth anathematize , and is alwaies penall d . c . medici . . All these things may be thus resolued , either an ecclesiastical person doth commit some small offence , and then he is deposed , & not depriued , but for a time suspended c . cum delic . de accus . : But if he commit grieuous offences , then he may be deposed d . c . cum non ab homi . . But if he commit faults most grieuous , such as by the Ciuill law he shall suffer death for , then he may be condemned ad perpetuam carcerem , to haue imprisonment during his life c . l. de here . lib . 6. . Excommunication is tearmed in our Law mucro Episcopi : and therfore it is said in the Canon law foelici mucrone Episcopi sacerdotum piacula resecentur 16. q . 2. c . visis in fi . . But the vtmost punishment of a lay man for not paying of Tithes , or other misdemeanour punishable by the Canon Law is excommunication onely : after which issueth a writ of Excommunicato capiendo at the Common Law .

Anglo .

3. The compulsorie Statutes of payment of Tithes are mentioned by the Barrister . It is true , but we haue compulsarie Statutes made for the paiment of Tithes : As namely the Statute of 27. H. 8. ca. 20. which is , That if the Ordinary of the diocese &c. do for any contempt , contumacy , disobedience &c. of the party not paying his lawfull Tythe , make information or request to any of the Kinges most honorable Counsell , or to the Iustices of the peace of the shire &c. to order or reforme any such person &c. that then he , or the Kinges said honorable Counsell , or such two Iustices of peace , whereof one to be of the Quorum , to whom such information or request shall be made , shall haue full power and authoritie to attache the said person &c. and to commit him towarde , there to remaine without baile or mainprise , till he haue found sufficient suertie &c. to giue due obedience to the proceedings , decrees , and sentences of the ecclesiasticall Court &c. And the like Statute was made 32. H. 8. cap . 7. And by the Statute of 2. Ed. 6. cap . 13. it is prouided , That if any person carie away his Corne or Hay , or his other prediall Tythes , before the Tythe thereof be set forth : Or willingly withdraw his Tythes of the same &c. that then vpon due proofe thereof made before the spirituall Iudge &c. the partie so carying away , withdrawing &c. shall pay the double value of the Tythe so taken , lost , withdrawen &c. beside the costes and charges of the suit &c. And as to these Tythes which Canonol . hath aboue called feudall which wee call impropriate , it is ordeined by the Statute of 32. H. 8. 4. Impropriate Tythes at the common Law , are compared with feudall tythes . c . 7. that they may bee demaunded by a Praecipe quod reddat .

Codign .

Our lawe in all the matters abouesaid consenteth with the Canon-lawe .

Nomomath .

But what if a man will not pay his Tythes in the time of vacation of a benefice .

Anglonomoph .

Then the Ordinarie ex officio may cite him to paie them Registr . 51. Fitzherb . nat. bre. 52. G. .

Canonol .

10. The Ordinarie ex officio may cite men to pay Tithes . That seemeth not to be repugnant to our Law Goodal . lib . de lib . Eccles . .

Codign .

Nor to ours .

Nomomath .

Now that you haue proceeded so farre in matters of iurisdiction , I pray you let me mooue you for other doubtes concerning the same point . Whether is the crime of Heresie subiect to the censure of the Canon Law onelie , or to the iurisdiction of all your Lawes , I pray you shew me how , and how farre forth it is punishable .

Canonolog .

There be two thinges which make Heresie : First it must respect and concerne the Articles of our Faith : Secondly there must be a stubborne , and pertinacious affirmation : for there must be error in ratione , and pertinacia in voluntate Cle . 1. §. porro de sum . trini . : for where there is error , 1. Two Sorts of Heretikes , formatus and suspectus . but not obstinacie , there the partie can not be said to be formatus , but suspectus haereticus , and then he holdeth the error inquisitiue , but not adhaesiue . But he that is formatus haereticus is thus punished in our Law : he is excommunicated , he is bereaued of all ecclesiasticall promotion , he is deliuered vp to the secular power , and all his goodes and landes be confiscated , and taken away from him c . ad abolend . de haeretic . c . Excommunicamus de haeret . et c . secundum leges eo Tit . lib . 6. . But in two cases their landes are reserued , and left to their children : First , if they reueale their fathers heresie c . Vergent . in sen . de haeret . c . vt inquisit . de haere . lib . 6. , 2. 2. In what case the wife and children of Heretikes shall enioy their landes . If they haue been so long in possession that they may prescribe c . vt officium de haere . lib . 6. . But the dowrie of the wife of an Heretike is not forfeited , vnlesse she do marie him knowing of the heresie c . decreu . co . Tit . lib . 6. .

Codicgn .

Our Law agreeth to that which you haue said : And further prescribeth an other punishment , which you haue not mencioned against such offendors : for it saith , that they shall be burnt aliue l. quisquis C. ad l. Iul . maiest . Et c . vt inquisitionis de haeretic . lib . 6. .

Nomomath .

Yet I haue read in a learned Ciuilian , 3. Heretikes by the ciuill Law not punishable by fire . that in the whole bodie of the ciuill Law it is not recorded , that Heretikes should be put to death by fire : and therefore he is somewhat bold with the Canonistes , and calleth them igniuomos canonistas Alber . Gentil . lib . lecti . 2. .

Codign .

Indeed our Law as to that point is wholie grounded vpon the Canon c . ad abolend . de haeretic . .

Canonolog .

It is not grounded vpon the Canon , for we referre the matter wholie and finallie to the secular Magistrate : as your writ de Haeretico comburendo Anglonomoph . doth testifie .

Anglonomoph .

Indeed in our Realme in auncient time , he that was to be burnt for Heresie , 4. The Canonist poasteth the punishment of Heretikes to the common Law . was first to be conuicted of the same before the Bishop of the diocese &c. and ought to abiure it : And if he did after relapse into it againe , and were thereof condemned in the said Dioces : then he should be sent to the secular power to doe with him whatsoeuer should please the king Fitzherb . nat. bre. 269. . But afterward by the Statute of 15. of king Henry the eight 15. H. 8. cap . 14. , it was ordeined , that he who had once abiured heresie , 5. The professor of the common Law bandeth back againe the punishment of Heretikes to the Canon Law . and was relapsed , and was conuicted hereof before his Ordinarie , that notwithstanding the Ordinarie ought not to commit him to the laie power without the kinges writ first purchased herevpon to burne him .

Nomomath .

Then I perceiue the whole act both of adiudging to the fire , and of sending the partie to receiue that punishment , dependeth now wholie vpon the Canon Law , and the sentence of the Bishop framing the style of his iudgement according to the Canon Law .

Canonol .

The secular power putteth him to death : but we are discharged of it .

Nomom .

Nay verily , no more then Nabuchadnezer can be acquited of exposing the life of Daniell to hazard : for he might as well haue excused himselfe and said , that he did not meane to kill him , but did onelie commit him to the curtesie of the lyons : And as he did not personally put him into the caue , & within the grate : so neither do ye personally thrust these which you tearme Heretikes into the fire , nor bind thē vnto the stake . Nabuchadnezers punishment I haue reade of , which was grieuous and horrible : But I doe not reade of the admittance of such excuse . And when the Iudge of Iudges shall examine such firie proceedings , it will be in vaine to excuse themselues by the fire , and the chaine , and the stake : or by the Shirife and the Bailifes , if the Iudgement haue been wrongfull and vniust . It will be like the excuse that Phillip king of Macedonia made , when he was charged with the expugnation and ouerthrow of the Citie of Chius : Nequè ego Chium expugnaui , sed Prusiam socium & amicum expugnantem adiuui Liuius lib . 32. : for so Prusias might haue said , that he did it not , but onelie encouraged his men to do it . So Brutus and Cassius might be excused from killing themselues , because they did non inflict the wound , but did will and commaunde others to doe it Flor . lib . 4. histor . . After as bad a sort Dido cleareth her selfe of her death , though not any waie to be cleared : Praebuit Aeneas et causam mortis et ensem : Ipsa sua Dido concidit vsa manu Ouid . Fastor . 3. . But I will insist no more of this matter . Now resolue me , whether any Church-land be demaundable at the Spirituall Law .

Codicgn .

Religious houses and landes belonging vnto them deputed to holie vse are comprehended in our Law vnder the name of Church-land or lyuing : 1. What things may be tearmed Church-land by the Ciuill Law . And all landes which belong to Oratories or priuate Chappels , annexed to the particular houses of laie men , by the authority of the Diocesan , and the landes belonging to them are comprised vnder the name Church-land or Church liuing C. de epis . & cler . in lib . Orpha . : Likewise that plott or parcell of ground in which a dead man is buried , or wherein his head or any part of him is buried becommeth consecrate , and religious , and therefore cannot be morgaged nor pledged ff . de reli . & sump . func . C. quae res oblig . poss . l. 1. : and of such landes our lawe taketh notice and holdeth full iurisdiction .

Canonol .

But in strict reason such things do belong to the iurisdiction of the spirituall court 42. Disti . oratorium . .

Anglonomoph .

These matters are diuersly taken in our law : for in action of trespasse conceiued by the Vicar against the Parson for the breaking of his close , and for his lambes taken away , whereas the close supposed was the Churchyard parcell of the vicarage of the plaintife , 2 Of Churchyards the spirituall court shall hold iurisdiction by the common law . it was held by the better opinion that in this case wherein the close supposed in the writte is admitted by both parties to bee a churcyard , the spirituall Court onely should hold iurisdiction 13. R. 2. iurisdict . 19. . And an assise likewise was brought of a house against a Parson , who pleaded in bar , that he was Parson of P. and that the house demanded was parcel of his said church , from time out of mind , and that there was sepulture of deade persons there : wherefore Perseis opinion was that the court temporall ought not to holde plea in this case 44. Ass. pl. 8. : but if the Parson of A. and the Parson of B. do contend in suite for a parcell of lande , 3 The right of gleabe land is triable by the common law . the one claiming it to bee his gleabe , the other his : it hath beene held in this case , that the spirituall court shall not hold iurisdiction 19. H. 6. 20. . And Bracton likewise affirmeth , that a thing giuen in frankalmoigne remaineth laye fee Bract . li . 5. c . 16. : and by our lawe a prohibition lyeth for chaunteries , 4 Lands deuised not subiect to the iurisdiction of the ecclesiasticall court . chappels , prebendes , and vicarages Fitzh . N. B. 40. G. & 35. b . : and if a man deuise lands or tenements deuisable , the partie to whome the deuise is made shall not sue in court spirituall , and if he doe the other shall haue a prohibition : and therefore as Bracton saith , the deuisee may enter without the licence of the executor Bracton vbi supr . Perk . Tit . deuis . : but if a deuise bee made of goods , and chattels reall , 5 Suites for chattels reall must be in the spiritual court . as of a lease for tearme of yeares , or of a warde , there the suite must be in the spirituall court Fitzh . N. B. 43. G. : and if a termor of certaine land doe deuise his croppe and dye , the spirituall court shall hold plea for this croppe 8. H. 3. prohibit . 19. : and if a man deuise corne or other goods to a man , and a straunger will not suffer the executor to performe the testament in this point , they may sue the stranger hereupon in the spirituall court : but if a man take goods deuised out of the possession of the executors , the law is otherwise , for then they shal haue an action of trespasse at the common lawe 4. H. 3. prohibit . 28. : but if a man sue another in the spirituall court for a rent reserued vpon a lease of tithes or offerings , a prohibition wil lie in such case because it is a laye rent 44. E. 3. 32 .

Nomomath .

Let me now know Canonol . when a man graunteth to one ius patronatus of the church of Dale , if this title bee controuersed in question , whether shall the ecclesiasticall court or temporall hold iurisdiction .

Canonolog .

1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court , and that it passeth by the word ecclesia . Surely I thinke it is determinable in the ecclesiastical court , because the right of patronage may passe by the word ecclesia : as if a man said vnto me , dono tibi ecclesiam S. Petri in Dale , the aduowson of the church doeth passe c . quod autem de iur . patronat . .

Anglonomop .

The word ecclesia is otherwise taken in our law , for it is most commonly vsed for a place wherein baptisme and the sepulture of mens bodies is celebrated 34. E. 1. quar . impedit . 187. . And M. Fitzherbert saith , that by this word ecclesia is meant onely a parsonage Fitzh . N. B. 32. G. : and therefore if a presentment be made to a chappell as to a church , by the name of this word ecclesia , this doth change and metamorphize the nature of it , 2 The diuers significations of the word ecclesia at the common law - and maketh it presently a Church 17. E. 3. 58. 47. E. 3. 5. & 21 13. H. 4. Briefe . 870. : and because by this word ( church ) is meant a church parochial , therfore if a man haue an oratory or chappel within his mannor of Dale and he giueth part of the demesnes of the said mannor to a Chapleine for life to sing there , yet hee hath not by this made it a Church , but it remaineth still an oratorie , and his freehold : for here was no effectuall operation of lawe to force such a chaunge 36. E. 3. 13. . But if a writte bee brought of a Church in Dale , and in Dale there bee both a Church , and a Chappell , yet the writte shall stand good for the reason aboue shewed 20. E. 3. Brief . 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33. : and sometime it signifieth the Church which consisteth of stones , walles , and roofe 8. H. 5. 4. Rolf . : and sometimes the demesnes and profits of the benefice 45. E. 3. 4. : but verie seldome , if at anytime it is vsed for ius patronatus . But if as you say , the patronage shold passe by these words dono ecclesiam : in all reasonable vnderstanding the patronage is to be distinguished from the Church or benefice . And therefore Pollard 12. H. 8. 12. H. 8. 7. Prior . de Hunting . c . doth well distinguish the interest of the parson , 3 The interest of the patron , parson , and ordinarie in the church is shewed . patron & ordinarie as in a seuerall thing : the parson ( saith hee ) hath a spirituall possession in the church : the ordinarie hath charge of the church to see the cure serued : the patron ius presentandi to the church ; which being well weied doth clearely bewray the imbecilitie , & in consequence of your proposed argument Canonol . neither can you by any solide reason of law entitle the spirituall court to iurisdiction in this case , as I shall hereafter shewe .

Nomomath .

What say you of this matter Codign .

Codign .

Wee rely wholy for these matters vpon the Canon law which in these pointes is verie pregnant and copious .

Canonolog .

It is so in deed : but by that lawe ius patronatus is meerely spirituall , and not temporall , as Anglonomoph . would perswade : for it is wholly after a spirituall manner carried & ordered : for though the patronage do arise of three things the foundation , 4 What things do make a patron by the Canon lawe . the edifying , and the endowment 26. q . 7. filijs ca. quicunque 18. q . 2. Abbat . according to the ancient saying patronum faciunt dos , aedificatio , fundus : yet it is no temporall thing , because though a man bee condemned , and his goods bee confiscated , yet hee shall not lose his right of presenting Gl. est . in ver . subiect . § rursus in fi . c . pastor al. in Cle . de re iudi . : neyther is this repugnant , that to a Church parochiall hee may present , to a Church collegiate the lawe is , that though his assent goe not to the election of the partie who is to be the gouernor : yet our law commandeth that after the election it should bee registred c . nobis de iur . patronat . . Yet it seemeth to be spirituall , because if a laye patron doe present one , and after will varie and present another : nowe it is left to the arbiterment of the Ordinarie , which of them hee will admit 2. dist . c . ecclesiastic . et c . quod autem de iur . patronat . : and hee which is so refused by the Bishop , hath no remedie against the second presentee , but he may haue remedie against the Bishop for his vniust refusall or wrongfull delay : and his remedie in this case is a duplex querela against an inferior Ordinarie : and this must be handled in the spirituall court Pastoralis ∽ . Tit . .

Anglonomoph .

Yea but the reason of that is giuen in our lawe , because the right of patronage shall not come in debate Regist . 55. .

Canonol .

This is petere principium , but let me proceed . There is such a mutuall correspondence betwixt the patron & the Church , that they may not bee seuered either in gouernment , or in iurisdiction : for though the patron hath aliquid honoris , as we said , because he is to haue the first place in the procession 16. q . 7. piae mentis . : yet hee hath also aliquid oneris , for he is bound by our lawe to defend the Church from all oppressions 17. q . 7. filiis . : and in that regard if he fall into pouertie , he is to be mainteined de bonis ecclesiae Praealleg . c . filijs . .

Anglonomoph .

These circumstances do not inferre the conclusion which you labour for . It shall appeare to you Canonologus , by our law and by verie strong reason , that the right of patronage or the aduowson of the Church , 5 Ius patronatus is one of the proper obiects of the common law . is one of the proper obiects of the common law . First it is a rule with vs , that if a man be sued in the spirituall court for a laye fee , a prohibition will lye , that is , for lands and tenementes as M. Fitzh . well expoundeth it Fitzh . N. B. 40. l. . Now that an aduowson is a tenement , 6 That an aduowson lyeth in tenure . & lyeth in tenure , may by seuerall authorities be auouched : and therfore a tenure ought as well to bee found by office of an aduowosn , as of a mannor 14. H. 7. 28. {per} Bri . 17. E. 3. 10. : and a lease for yeares may be made of an aduowson , and if the lessee alien in fee , this is a disseisin to the lessor .7 . E. 3. 11. : and 15. H. 7. all the Iustices agree , that an aduowson lyeth in tenure 15. H. 7 , 8. . And for that cause , if one hold and aduowson of the king , and graunt it to another without licence , the grauntee shall pay a fine 21. E. 3. 31. 20. E. 3. Estoppel . 187. . And generally vpon any surmise , that a man is sued in the spirituall court for a temporall thing , a prohibition will lie Fitzh . 43. h . . Now the aduowson is temporall , though the admission & institution be spiritual .

Nomomath .

Let me aske you further this question : if a man sweare to me that he will make me a feofement of certaine land before such a day , and he doth it not , whether may I sue him in the spirituall court pro laesione fidei .

Anglonomoph .

1 Punishment p●● laes●o●e fidei concerning a temporall acte , is not to be adiudged in the ecclesiasticall court . No : for if you do , a prohibition will lie by our law , because the acte which is to be done is a temporal acte , & is to be tried by the common law 38. H. 6. 29. Fitzh . 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni . 16. D. S. lib . 2. c . 24. : and if men be sworne to giue true euidence to a iurie , and they doe so , whereupon certain persons be endited of some misdemeanor , if they which be endited do sue them that gaue euidence against them in the spirituall Court for this diffamation doone with an oath , they may make a prohibition Fitzh . N. B. 42. F. 11. H. 4. 88. prohib . 12. : but if any periurie be committed in a spirituall court , 2 Periurie in an ecclesiasticall court , punishable in an ecclesiasticall court . there the spirituall court shall haue iurisdiction Stat. de circumspect . agat . 13. E. 1. 5. Elizab . c . 23. &c. 9. : but the Ordinarie in temporall cases maye punishe the partie which hath committed periurie ex officio , though not at the suite of the partie 20. E. 4. 10. : and if a woman haue title to sue a Cui in vita , and she maketh oath to the tenant of the land , that she will not sue any cui in vita against him , if after she sue a Cui in vita , and thereupon the tenant sueth her in the spirituall court pro laesione fidei , shee may haue a prohibition , because the oath toucheth a temporall thing , namely land Fitzh . N. B. 42. l. 4. H. 3. prohibit . 19. Bracton . lib . 5. c . 2. . And if a man sweare to one that hee will pay to him twentie pound which he oweth him at a certaine day , and at the day hee fayleth of the paiment , hee may not now be sued in the spirituall court for the periurie , because an action of debt lyeth at the common law for the principal 22. E. 4. 11. H. 4. 88. prohib . 12. . But 34. H. 6 it is saide , that if a man buy an horse for fiue pounde soluend . such a day , and sweareth to make paiment at the day , but when the day is come fayleth of payment , an action of debt lyeth at the common lawe , and an other at the spirituall lawe pro laesione fidei , and a writ of prohibition lyeth not because they be two distinct thinges 34. H. 6. 30 Br. prohib . 2. : yet 2. H. 4. is that a prohibition lyeth in such case 2. H. 4. 10. .

Canonolog .

But Lindwood sheweth that a libell may be so framed , that no Prohibition will lie in your last recited case : as namelie , the libell may be , ( That the partie hath damnablie broken his oath , pretending that he was not bound by it Lindw . in capit . aeter . sanctio . verb . periur . .

Anglonomoph .

That is but a weake support of the spirituall iurisdiction : 3. Linwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall Law is not admitted . for it is one thing to be punished for periurie , an other for his irreligious pretence . And surelie I take it to be agreeable to all Lawes , that pretenses and intents are not punishable , but onelie in crimine laesae Maiestatis . And a man may sue a Prohibition directed to the Shirife , that he shall not permit , nor suffer the Queenes lay subiectes to come to anie place at the Citation of Bishops , ad faciend'aliquas recognitiones , vel sacramenta praestanda , nisi solùm in causis matrimonialibus et testamentarijs . 4. The Barrister disproueth the general citations of Bishops ad sacramenta prestanda by the common Law . And M. Fitzherb . thinketh that these generall Citations , which Bishops make to cite men to appeare before them pro salute animae , without mentioning any speciall cause is against Law Fitzh . nat. bre. 41. A. .

Nomomath .

Why may they not vse such generall Citations , 5. Nomomathes encountreth him in this point . as well as a Iustice of peace by your Law may make a precept to bring one before him , to aunsweare to such things as shall be obiected against him without shewing any speciall cause Crompt . Iust . p. 131. et 132. And if by your Law they can receiue no oath but onelie in matters Matrimoniall and Testamentarie , then it must needs be intended , that though their processe be generall ad sacramenta praestanda , yet it is specially meant of Matrimoniall or Testamentarie causes : For I remember a good rule in the Canon Law to this purpose : Quando constat de lege , sufficit generalis allegatio 28. q . 1. sicut enim in fi . . But what saie you to this matter of oathes Codicgnostes .

Codicgn .

Our Law differeth little or nothing from the Canon law in the discourse of oathes . 6. The Ciuill Law agreeth with the Canon , in matter of Oathes . And as the Canonistes , wee make two sortes of Oathes , Conuentionale and Iudiciale : Conuentionale , or Promissorium , is when we sweare de futuro that we will giue some thing , or do some thing &c. Bartol . in l. si quis ff . de fid . instrum . Iudiciale is when the Iudge for the triall of the truth of a controuersie , and the infourming of his owne conscience vrgeth the partie to take an oath ff . eo . Tit . l. ius iurand . . Of both these riseth an action triable wel enough by the Canon Law : for in this matter the Canon is the sterne and motiue of our iudgements : and therefore we hold the rule of the Canon Law firmely : Praestans et recipiens iuramentum , contra Canones punitur Gl. verb . paena . capi . grauis . de censi . .

Nomomath .

Well , I will trouble you no further about questioning of things belonging to seuerall iurisdictions , but will now passe to inquire somewhat of such thinges whereof an Action of the case will lie .

The second Dialogue . Of Actions vpon the Case . NOnomath .

I haue some time meruailed Codicgn . wherefore an Action vpon the case , which you tearme actionem iniuriarum , should not haue a speciall name , aswell as other actions , when as at the Common Law euery action beside this hath his speciall name : As an action of Dette , of Accompt , of Wast , of Detinue , of Couenant , &c. And in your Law there is Actio ex stipulatu , actio empti , actio depositi , actio de pauperie &c. I pray you therefore let me know the reason hereof .

Codicgn .

What is more ebbing and flowing then mans inuention : for some things it hath wordes too many , for some it wanteth names : Therefore Iuuenal , when he sought for an apt name for that age which ensued the fower famous ages , being this last age of the world , and worse thē the yron age , he nameth it by giuing it no name , ( for his inuention could not find out any proper appellation ) and thus resolueth : — quorum sceleri non inuenit ipsa Nomen , et a nullo posuit natura metallo . And because our sage Maisters of the Law could not deuise as manie seuerall names , as there be seuerall iniuries : for what Dictionarie could conteine so many names ? and because the name of the signe should be ample , and large enough for the thing named or signified : 1. The reason is shewed wherefore actio iniuriarum hath so generall a name at the ciuill Law . therefore they deuised that actio iniuriarum might serue for all wrongs , for which they could not frame particular names .

Anglonomoph .

Indeede as D. Stephens his water was fit for manie diseases , and yet had neuer any speciall name , 2. The Barrister compareth an Action vpon the case at the common Law to D. Stephens his water . but was generallie tearmed Doctor Stephens his water : so likewise an Action vpon the case stretcheth as a remedy against manie offences : Yet it hath no other name then an Action vpon the case . And it is therefore so tearmed , because euerie mans case must be in that action speciallie and at large set downe : for in that action the writ ought to comprehend the speciall matter , as well as the declaration 7. H. 6. 47. : Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife , which he after purchased for himselfe , in deceit of the plaintife : and the plaintife did not shew of whom the Manor should be bought in the writ , but onelie in the declaration , the writ was abated 16. H. 6. Action sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53. .

Nomomath .

I pray you satisfie me in this : If a man be enterteined , or lodged in an Inne , and some of his goodes be taken from him out of the Inne by a straunger , whether may he haue an Action vpon the case against the Inne-keeper .

Anglonomoph .

Doubtles he may , if it were a common Inne in which hee was lodged 2. H. 4. 7. 5. Mar. 158. Dyer . . And if the partie so preiudiced doe bring an Action vpon the case against the hoast , 1. An Action vpon the case lieth against the keeper of a common Inne if goodes be imbeasiled . it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him : or that the plaintife himselfe had the key of the chamber . And an Elegit hath been awarded in such case of the land , which the defendant had the daie of the iudgement giuen , and not the daie of the writ brought . And a Capias ad satisfaciendum lieth not , because it was a laches , and no wrong 42. E. 3. 11. : And therefore the wordes of the writ be pro defectu ipsius B. Fitzh . nat , bre. 94. B. : But the opinion of Hill , is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest , that he can not attende vpon him , and notwithstanding he will needes be harboured there at his perill , the Inne-keeper is discharged 11. H. 4. 45. per Hill . . And 22. H. 6. the difference is taken , 2. If a stranger lodge with me by my consent , and do imbeasill goodes , the Inne-keeper shall not be charged . that if a man doe lodge in chamber with me by my consent meerlie , and not by the appointment of the hoast , and he robbeth me , the hoast shall not be charged : Otherwise is it if he be harboured there by the hoast . And if my seruant robbe me , the hoast shall not bee charged 22. H. 6. 21. per Curiam . . And 39. 3. If my seruant imbesill my goods , the Inne-keeper shall not be charged by the common Law . H. 6. it is said , that an Action vpon the case lieth against the Inne-keeper , if he will not lodge a man ; and the Constable may enforce him thereunto . But Danby there holdeth , that he is not bound to giue bread ( or prouander ) to his horse without present money paied in hand 39. H. 6. 18. .

Codign .

By our Law , 4. By the Ciuil Law the Inne-keeper is to be charged with action , if his seruants steale goodes . if thorough the negligence of the seruants which waite , or attende in the Inne , if any thing be stolne out of the chamber of the guest by any such seruants , the Master or Inne-keeper himselfe is to be impeached by waie of action , and he whose goodes are stolne may recouer double dammages against him ff . si ad vers . nan . l. 1. : because the receit of such goodes into the Inne is an implicatiue promise , that the goodes shall be safe ff . furt . adu . nan . can . sta . l. 1. . So likewise if a man haue a Ship wherin he vseth to transport & conuey men or goodes into foreine nations , 5. If through the default of the Master of the ship goods be stolne , the owner of the ship is to make recompence . and hath appointed a Master of the said ship , by whose default or wilfull offence the goodes of some that are in the ship are imbeasiled or impaired , an action in this case will lie against the owner of the ship ff . de exercit . acti . l. 1. : for the Master of the ship is he cui totius nauis , anchora , et cura commissa est ea . l. 1. §. Magistrum . . And in the Tertorike or Almaine language , such a person is called by the name of Stir-man : and the owner of the ship is therefore in this case charged , because he prefected him , and made him Master of his ship ca. l. 1. §. non autem . , and because to him the dailie profites , rents , and gaines of the ship doe appertaine and come ca. l. §. exercitatorem . .

Canonolog .

I doe not remember any thing in our Law contrarie to that which you haue said .

Nomomath .

I would be resolued of this Codignostes , whether according to your Law in all contractes there must be a mutuall consideration on both sides .

Codicgn .

1. By the Ciuill Law it is not necessarie that there be mutuall consideration in contractes . It is not necessarie , that there be mutuall consideration , but so there be a mutuall consent , it is sufficient in our Law , and it is therfore called a contract : because by couenanting diuersa voluntates in vnum contrahuntur Instit . de actio . §. 1. Gazal . verbo contractus . . D. Baldus noteth , 2. Three sorts of contractes by the Ciuill Law . that there is a triple kind of contract . A proper contract , an improper contract , and a most improper contract . The proper contract , 3. What is a proper contract by the Ciuill Law . is when both parties are vltro citróque bound l. Labeo . § contrac . ff . de verb . signif . : As if I buy of you a Horse for fiue pound , I am bound to giue you the money , and you are bound to giue the horse vnto me . 4. What an improper contract is by the ciuill Law . An improper contract , is when one of the parties onelie is bound by the contract : As in a gift of goodes , or chattels , the donour onlie is bound to deliuer the thinges giuen l. Aristo . ff . de donat . can . mor . . And so when one lendeth to an other , he which boroweth is only bound ad tantundem reddendum ff . si cer . pe . l. 2. . The most improper contract , 5. What a most improper contract is by the same Law . is when neither of the parties is bound , but a bond or contract is dissolued and defeated : As when a man selleth to an other a siluer Cup for three poundes , to be paied at such a day , & the vendour deliuereth the cup to the seruant of the vendee , who presently runneth from his Master : so that the vendee sueth the vendor for the cup , & the vendor sueth him for the money , if depending these two seuerall suites , both the parties doe after friendlie agree , that suites shall surcease betwixt them , and that the one of them shall be quite against the other , this transaction as we tearme it is a contract , though most improper Saly . in lib . siue apud acta . C. de transact . . Likewise when a man will acquite one of money which he oweth vnto him vpon a contract , which in our Law is called acceptilatio : as when I saie vnto one with whom I haue bargained : Haue not you receyued of me all the money which I did owe vnto you by way of contract ? and he aunsweareth : I haue receyued it all , whereas in truth he hath not receiued a penie of it : this is a good acquitall , and one of the most improper contractes Instit . qui . mo . tol . oblig . et in l. vbi pactum . C. de transact . per Bar . .

Anglonomoph .

Our Law medleth with no contractes , but such as you haue tearmed proper contractes : 6. The Common Law admitteth no contracts , but such as be proper . For our Law requireth in all contractes a mutuall consideration , and one part of the contract challengeth and begetteth the other . And therefore the case was thus : The seruant of A. was arrested in London vpon a trespasse , and two which did know his Master did baile him : and after A. promised them for their friendship to saue them harmelesse of damages and costes , if afterward they were charged : And so it befell , that afterwarde they were charged : yet it was helde that the Action vpon the case would not lie vppon the promise , because there was no consideration , for the bayling was of their owne head , and was executed before the assumpsit : But if the Master had requested before , and assured afterward then perhaps the law would haue beene otherwise : as in consideration that you haue married my daughter at my request I will giue you an hundred pound . This is a good consideration because the marriage did ensue my request , and in like sort land may be giuen in frankemarriage after the espousals 10. Eliz . 272. Dy . . And so wheras Oneley brought an action vpon the case against the Earle of Kent and his Ladie , and declared vpon an assumpsit of the Ladie , whilest she was sole , that in consideration that he had taken great paines and had expended 1500. li. about her businesse and suites , that she would repay the 1500. li. and beside that twentie pound more . This was held a good consideration 19. Eliz . 356 , Dy . Oneleys case . : and 29. Eliz . the case was such : A man being found in arrerages vpon his account did promise to the dettee that if he wold forbeare him per paruum tempus , that hee would pay him the money without further delay , and the dettee did forbeare him accordingly , and after vpon this assumpsit brought an action vpon the case : and it seemed to three of the Iustices of the common pleas , that the action would not lie , because that paruum tempus was no good consideration , neither could it be beneficiall to the partie : but one of the Iustices saide , that if the dettee had brought an action vpon the case without any consideration alleadged , and had proued the dette , that would haue sufficed for that had beene an assumpsit in law : and that there must be a reciprocall consideration in such case may most clearely and euidently be proued , by 44. E. 3. A writte of dette was brought , and the plaintife declared that the defendant did owe vnto him fiue poundes for a house which hee had sold vnto him : the defendant said , that there was a couenant betwixt the plaintife & the defendant , that the pl shold remoue the same house at his owne costs & charges within a certaine day to a certaine place , and when he had so remoued it , that then the defendant would pay him his money , and that the house ( or the frame of the house ) was not as yet remoued : and this was held a good plea 44. E. 3. 28. . And where two considerations are to be accomplished , the performance of them both is to bee auerred : Wherefore the case was , that in an action of trespasse the defendant pleaded a concord , that he before a certaine day should make certayne windowes , and should paye certaine money , and he said that he payed the money by vertue of the concord before the day , and demaunded iudgement si actio &c. But hee spoke nothing of the making of the windowes , and the plaintife replyed , Nul tiel accorde , and it was for the plaintife , and it was held by all the court a ieofaile . For when they accorded that the defendant should doe two things , the concord is not performed , vnlesse both be done , and so the matter of the plea is not good , and therefore the replication cannot make it good 6. H. 7. 10. : And if I buy a horse of you for sixe pound , you may deteine the horse till I haue payed you 10. E. 4. 18. : and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently , but doth onely promise it , the vendor may sell it to another immediately , and the other can haue no remedie against him : for otherwise he may be compelled to keepe his horse in perpetuum against his will 17. E. 4. 1. per Choke . : And to this agreeth the booke of 21. H. 7. where it is said , that in the bargaine it is implyed , that the bargainee shall pay the money presently , otherwise hee shall not haue the thing solde ; but if it were for a certaine day , the money were not to bee payed before the daye , because the bargainor hath giuen vnto him expresse libertie to pay at any time within the time prefixed 21. H. 7. 6. : And so is the booke of 28. H. 8. that a contract or bargaine is not good without present payment , vnlesse there bee a certayne day limited , so that one of the parties may haue an action of dette for the money , and the other a writte of Detinue for the wares 28. H. 8. 30. Dy . ; and if a man assure and promise to one that he will make for him certaine waines for carriage &c. and hee taketh parcell of the money before hand to do it , and after he doth it not according to his assumpsit , the other may haue an action of trespasse vpon his case Fitz . N. B. 94. A. : so an action vpon the case was brought because the defendant promised to the plaintife , that if the plaintife wold discharge I.S. of execution , in which hee was at the suite of the plaintife , that then he would pay vnto him his dette , and in truth the promise was made to the wife of the plaintife , to which the husband agreed , and thereupon he discharged the partie , and it was ruled by the court , that the action was maintenable because a feoffement of lands or gift of goods is auaileable to the wife if the husbande doe not disagree , so it is of an assumpsit 27. H. 8. 24. 25. .

Nomomath .

Trouble your selfe no further Anglonomoph . let me aske this one question of Codicgn . whilest it resteth in my mind . Suppose that I haue hyred a ship or gallie to transport my family , and some of my houshold goodes , by lawfull permission , and I agree to pay for the carriage of euerie poll or person of them a certaine summe of money , admit that three or foure of them die in the ship , whether shall the owner of the shippe haue the entire summe of money , or shall it bee apporcioned for them , that be dead before they be brought to the land Ludouic . de Rom. in singulari . .

Codicgn .

To cleare your doubt this diuersitie must bee vnderstood : if the owner of the shippe did make a couenant with you , 1 That no fare ought to be payed for them that die in a ship , if the master of the ship did assume to bring them safe to shoare . that he would bring them safe to such a place , then surely you ought to pay no fare for them that bee dead Id. in d . singu . ad regu , praedict . : but if the couenant were to take them into the ship , and to carrie them to such a place , thē the law wil be otherwise : and so if a child be borne in the ship whilest it is vpon the sea , 2 If a child be borne in sea-faring nothing is to be paied for that child . there is nothing due in respect of that child ff . locat . l. si adest . §. si quis mulier . .

Canonolog .

All contractes are bonae fidei , and what is a contract but stipulatio verborum ? so that it is to be taken as the words doe sound , no violence being offered to apparant equitie . Pecki . ad reg . iur .

Anglonomoph .

In our law there is a case not much swaruing from this purpose , if we stand not too much vpon the common and verball way to go to the end of a question , 3 The barrister putteth a case of carrying a horse safe and sound ouer Humber . I. B. did declare by bill that A. at a certaine day and yeare vpon Humber did assume to carrie his horse being taken into his barge ouer the water of Humber sound and safe , and the said A. did surcharge his barge with other things , by which meane his horse perished in the water , and this was held a good cause of action 22. Assis . pl. 41. : but surely in this case without ferrying ouer the horse there was nothing due vnto the bargeman by reason of the couenant .

Nomomath .

Canonologus , you haue yet spoken nothing concerning the necessitie of mutuall consideration in bargaines , I pray you let vs heare the determination of your law hereupon , & then we will insist no more vpon this point of contractes .

Canonol .

Our law doth not refuse or abiudicate the kinds of improper contractes , 4 The cannon law agreeth with the ciuill in cases of improper contracts . as by the report of Anglonomoph . the common law doth , for if two should contend for an ecclesiasticall benefice , as namely for the aduowson of a parsonage or prebend , and one of them agreeth with the other , that he shall haue one turne of presenting , and the other an other turne , and so successiuè per alternas vices , heere though there bee no consideration properly : yet in our lawe this is a good contract and a good consideration : but if one of them should haue giuen to the other twentie pounde to haue had the presentation wholy , & solely to himself , this had bin void in law and symoniacall c . si quando cleric . de offi . de leg . &c. statuimus de transac . nisi esset de preben . .

Nomomath .

How doth your law Anglonom . punish defaultes for want of skill , as suppose that I do hire one for a certaine summe of money to make for mee a frame or fabricke of an house of good timber , well seasoned , and in a certain forme , and he maketh it of verie weake timber , ill seasoned , and very rudely in forme , whether in such a case will an action vpon the case lye against him or no .

Anglonomoph .

I doubt not but it will , for where a man vndertaketh to do a thing well & perfectly , and through ignorance and default of skill hee faileth , remedie is giuen by an action vpon the case : for the case was 11. R. 2. that in an action vpon the case , the plaintif declared that at a certaine day and yeare in London there was a couenant made betwixt the plaintife & the defendant , that the defendant should cure the pl of a certaine maladie , & he tooke of him for it a certain summe of mony before hand , in consideration whereof the said def . did vndertake to cure the pl of his maladie , 1 That by the common law want of skill is to be punished by an action vpon the case if there be an assumpsit eyther implicatiue or expressed . who ministred vnto him medicines contrary to his disease , whereby hee was empeired and became worse then he was before 11. R. 2. Act sur le case 37. : so 19. H. 6. an action vpon the case was brought because the def . did assume to cure the plaintifes horse , and that he adeo negligenter , & improuidè imposuit medicinam , quòd equum &c. And it was there said by Newton , that if I giue counsaile to a man to giue his horse certaine medicines , who doth it , & thereupon the horse dieth he shal not haue an action , vnlesse I had vndertaken to heale him , which must be trauersed : And Paston granted this , & said , that if I haue a disease in my hand , and a man applieth a medicin to my arme , by which negligence my hand is empeired , yet no action wil lie vnles he had vndertaken to cure it 19. H. 6. 49. ; & as I take it , so is that case to be vnderstood which M. Fitzh . hath : if a smith doe hurte my horse with a naile , I may haue an action vpon the case though he did not warrant the well shooeing of him : but he saith not ( though he did not assume ) for in deed the shooing of him is an implicatiue assumpsit , & if there were no consideration , but the smith did it of meere good will , I do not thinke , that any action will lie Fitz . N.B. 94 D. 14. H. 6. 18. 46. E. 3. 19. 48. E. 3. 6. 21. H. 6. 55. : so that the action lyeth not meerely and directly for want of skill , but because the assumpsit was not accomplished for want of skill .

Codign .

But by our law the want of skill is a sufficient ground of action : 2 That by the ciuill law want of skill onely is punishable . for if in the case proposed of the making a frame of a house , it be not done well and artificially , our law is that the artificer shall render damages in toto , but if some part be well done , and some ill , so that it is euident that if the workeman had vsed conuenient diligence , all of it might haue beene well consummated , so that there is no default in skilfulnes but in carefulnes , then the workeman shall not bee condemned in toto , but in tanto that is for so much , as is not well done Gazalup . in ver . ignorat . .

Canonolog .

The rule of our law is , that crassa & supina ignorantia non excusat Ber. in c . regni . fiuit . de ordi ab epi . qui refig . epi . .

Nomomath .

Let mee know this of you Codicgnost . when one man through fraud and deceit ouereacheth another , 3 By the cannon law Crassa & supina ignorantia non excu . sat . whether is this punishable in your law as a thing iniuriously done .

Codicgnost .

Yes if hee doe circumuent him dolo malo . 1 Circumuention dolo malo punishable at the ciuill law .

Nomomath .

It must needes be so intended : for I am sure your Law reputeth no deceit to be good .

Codicgnost .

Yes , there is a distinction in our Law of Dolus bonus , 2. A difference at the ciuil law betwixt dolus malus , and dolus bonus . and Dolus malus . Dolus bonus , is when a man doth machinate or deuise anie thing to entrap a thiefe , or a traytour ff . de leg . 2. lib . cum pater §. Titia . , and such deceit may not properlie be tearmed fraude , but it may more fitlie be tearmed by the name of Solertia , or cunning . Such a kind of cunning is much vsed in war-fare , by which more victories are atchieued then by strength of hand . To which purpose I remember certaine verses of an vncertaine authour , that may well be accommodated to this purpose : Nil refert Armis conting at palma dolóue , Nam dolus , an virtus fuerit quis in hoste requiret . But Dolus malus is a craft or subtill deuise vsed to the deceiuing of an other ff . de do . mal . l. 1. §. 1. , or to frustrate the Law ff . de leg . l. contra legem . : As the Law prohibiteth a man to giue anie thing to his wife . And Titius giueth a horse to Sempronius , who giueth it to the wife of Titius by the secreat compact of her husband l. si sponsus in pr . ff . de dona . inter . virum et vxor . , this is done in fraudem legis , because the purpose of the giuer at the first was to giue to his wife . But if there be a Statute , that euery one which guideth any wayne ouer such a bridge being fraught with carriage , shall paie iiij . d' , and the partie causeth all the thinges in the wayne , when he commeth to the bridge , to be caried ouer the bridge on mens backes , here is no defraudation of the Law : But if he should giue iiij . pence for the cariage ouer the bridge , but not currant money , now the Law should be defrauded Io . in §. penult . Insti . de ●dop . . And when a man is preiudiced by the fraudulent dealing of an other man , he may by our Law haue an action against him , which is called actio doli , an action of Deceit .

Canonolog .

Indeede the difference of Dolus is vsed likewise in our Law . And we haue a rule of that which you haue tearmed dolum bonum : Frangenti fidem , 3. The same difference the common Law obserueth . fides frangatur eidem 23. q . 1. noli existimare C. de pac . l. cum proponas in glo . Accur . . And likewise an example of it vsed in our law : namelie of Salomon , who did vse such cunning betwixt the two harlots , in searching out who was the true , and naturall mother of the child . But the deceit , which of you hath ben tearmed dolus malus , is in our Law nomen reatus , which it doth punish , as being done against the Law : for qui peccat , non peccat de legis authoritate 23. q . 4. qui peccat . .

Anglonomoph .

That deceit which of ye both hath been tearmed dolus malus , 4. Dolus malus punishable at the common Law by an action vpon the case , or a writ of Deceit . doth not in our Law escape punishment : but for the more strong inhibiting and repressing of it , it doth afforde a double remedie against such as endammage others by deceit : namelie , either a writ of Deceit , or an Action vpon the case . For if a man plaie with an other at dice , and he hath false dice , with which he plaieth , and winneth the other mans money , he that loseth his money in such sort may haue an Action vpon the case for this deceit . And in other like cases an Action vpon the case , or a writ of Deceit will lie , at the pleasure , and election of the plaintife . And if I present one to a Church , whereof I am Patron , to the Ordinarie , and one T. disturbeth me : wherefore an other man purchaseth a Quare impedit in my name , retournable in the Common place ( I not knowing thereof ) against the said T. and after causeth the writ to be abated , or me to be nonsuit in the action , I may haue a writ of Deceit against him 5. 5. E. 3. Quare impedit 37. 20. H. 6. 20. Fitzh . nat. bre. 96. A. . And in euery case an action vpon the case is maintenable against him which sueth an originall in the name of the plaintife against his will 7. H. 6. 45. . So if a man forge a statute merchant in my name , & sue a Capias therupon , whereby I am arrested , and had in execution , I may haue a writ of Deceit against him that forged it 19. H. 6. 44. 58. 34. H. 6. 19. Fitzh . Nat. br . 96. B. . So if the Warden of an Infant vouch one by couin , who is not sufficient , or pleadeth some bad plea , wheras he might haue pleaded a better plea , the Infant shall haue a writ of Deceit against him , and shall recouer the full value in dammages 9. E. 4. 34. . And 11. H. 6. a writ of Deceit was brought against an Attourney for acknowledging a satisfaction , whereas his master was not in truth satisfied 11. H. 6. 34. . And in a Praecipe quod reddat , if the Shirife retorne the tenant of the land to be summoned , whereas in truth he was neuer summoned , whereupon the tenant loseth by default vpon the Graund cape retourned : Now the tenant may haue a writ of Deceit against him that recouered , and against the Shirife for his false retourne Fitzh . Nat. bre. 97. C. : But the writ of Deceit in this case doth not determine the right of the land , but doth only defeat the iudgement 35. H. 6. 44 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18. . And 5. E. 4. is that no dammages in this case shall be recouered against the Shirife , but he shall be onelie fined 5. E. 4. 49. . And if a man recouer in a writ of Wast by default , whereas the defendant was neuer summoned , the defendant in this case may haue a writ of Deceit 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. Disceit 56. 19. E. 3. Disceit 3. . And if a man bargaine with an other , and assume vpon consideration to enfeoffe him of certaine land , and he enfeoffeth an other : he to whom the assumpsit was made may haue a writ of Deceit 20. H. 6. 36. 16. E. 4. 9. Fitzh . Nat. br . 98. F. , or an Action vpon the case at his pleasure 3. H. 7. 14. 2. H 7. 11. . And if one sell to an other a Horse which he knoweth to haue a secreat disease in his bodie : or selleth certaine quarters of Graine , which is full of grauell , a writ of Deceit lieth 20. H. 6. 36. . So 13. H. 4. a writ of Deceit was brought for selling a certaine quantitie of wooll , and warranting it to be 50. sackes , whereas it wanted of that measure : the defendant pleaded in barre that it was weyed before the sale , and that the seruants of the plaintife being his factors did accepr it , and caried it beyond the sea , whereupon the plaintife demurred 13. H. 4. 1. . And if a man lose his land by default in a Praecipe quod reddat , whereas he was neuer summoned , and die , his heire may haue an action of Deceit , and shall haue restitution of the land 8. H. 6. 5. per Rolfe . 15. E. 3. Disceit 43. 18. R. 2. Disceit 50. Fitzh . Nat. bre. 98. Q. . And 1. E. 3. in the booke of Assises it is said , that if a recouerie in such case be had against the father by default , whereas in truth the father was dead at the time of the recouerie , the heire may auoide this by writ of Disceit , or Error 1. Ass. p. 16. . And whereas there be two tenants for life , the remainder to the heires of one of them , and they both lose by default being not summoned , and the tenant for life dieth , the suruiuor shall haue a writ of Disceit for the whole : Otherwise it had been if the recouerie had been against the tenant for life onelie by default 8. E. 3. Disceit 7. .

Nomomath .

You haue sufficientlie discussed the point of deceit ; Now I would craue your opinions of an other matter . Suppose that a man by slaunderous and opprobrious speeches is impeached , and his good name impaired , this being but a verball iniurie : whether doe your Lawes inflict punishment vpon such as offend by contumelious and reprochfull speeches or no ? and what punishment doe they inflict ?

Codicgn .

1. Contemptuous speeches are not punishable by the Ciuill Law . Such outragious speeches either proceede of pride , and tend to contempt , & against such the Law alloweth no remedie , because the partie himselfe may frustrate them by contempt : Therefore the saying of the Rhodians in the senate did argue wisedom : Superbiam , verborum praesertim , iracundi oderunt , prudentis irrident : vtique si inferioris aduersus superiorem est , capitali paena nemo vnquam dignum iudicauit : etiam Deos aliqui verbis ferocioribus increpant , nec ob id quenquam fulmine ictum audimus Liui . lib . 45. . The disgrace , especially of wordes , irefull men reuenge with hatred , wisemen with laughter : yea though it happen that the iniurie be done by an inferior person to his superior , and no man euer thought such iniury worthy of capitall punishment : euen the Goddes haue of some been reuiled by insolent tearmes , yet we do not heare that any man hath been striken with thunderbolt for that fault . 2. Opproprious speeches which proceed of malice are punished . But if the contumelie do rather flow from malice then from pride , & tend rather to discredit then to contempt , the case is altered , and then a capital punishment hath in ancient time been inflicted , if the fault were publike . For of the Romanes S. Augustine saith thus : Romani probris et iniurijs Poetarum subiectam vitam famamque habere noluerunt , capite etiam puniri sancientes tale carmen condere si quis auderet D. Augusti . lib . 2. de ciuit . dei c . 12. : The Romanes would not haue their life & credit subiect to the reproches & iniuries of Poets , making it capital for any to deuise a slanderous libell . And he citeth the words of Scipio in another place : Nostrae duodecim tabulae cum perpaucas res capite sanxissent , in his hanc quoque sanciendā putauerunt , si quis actitauisset siue carmen condidisset , quod infamiam faceret , flagitiumue alteri D. Augusti . lib . de ciuit . dei 2. c . 9. Cicer . lib . 4. de rep . .

Nomomath .

3. It is obiected that the Graecians did tollerate sarcasmicall speeches against wicked men . Yet the Graecians did allow such taunts and biting sarcasmicall speeches , as the same S. Augustine reporteth D. August . ibidem c . 9. . And Socrates did not take it grieuously to be noted of Comoedians , for which he giueth this reason : Si merito reprehenderint , emendabimur : sin falsò , tum illa nihil ad nos attinebunt . And it seemeth to keepe men in awe , and to restraine them from offending , when as wicked men well deseruing infamie , are touched by such reprochful inuentions .

Codicgn .

Your three arguments against my assertion are but three words , Graecians , Socrates , Terror ; to which by your permission I will particularly aunswere . The Graecians did manie times sleep , when the Romanes did awake , & in matter of ambiguitie the Romanes were by many degrees more to be imitated then the Graecians : Yet the Graecians did not alwaies suffer this licentious rage & inuectiue of Poets . For when Aristophanes in one of his comedies wold make known vnto the people the extorcious & tyrannous spoiles of Cleon , a man of high estate Aristoph . in Equit . , he was so inflamed with rancour against him , that when he could hire none for mony to personate Cleon , he performed the part himself , & did with such indignity & disgraceful termes abuse Cleō , that Cleon pursuing the matter against him , he was fined 5. talents : and as himselfe confesseth , though he gained much by his acted Comedie , yet he lost fully as much by his fine : And as himselfe further confesseth ( to expresse it in Latin ) reuomuit quantum hauserat Aristoph . in Acharnens . , being a tart-tounged detractor , whose workes are scarselie to be read , vnlesse a man would taste the gall of bitternes , much lesse to be imitated , and ( as Viues censureth him well ) multa per ebrietatem conscripsit Ludouic . Vi . in comment . ad lib . 2. de ciu . de . c 9. . And whereas he was corrupted by money receiued of Anitus and Melitus , the enemies of Socrates , 4. Aristephanes is condemned for his bitter detractions . to scourge and lash Socrates in his comedie called Nebulae , ( which the same Viues pretilie tearmeth fabulam nebulonicam ) with contumelious speeches , Socrates in this should not haue been pacient , because it was crimen facto non leue , exemplo admodum graue : But Plato , who was more exercised then Socrates in matters of common weale , did banish out of his common weale such railing Poets Plat . lib . 2. de rep . . And wheras you think it conuenient to salt the corrupt maners of men by such piercing speeches , that they may feare to offend : the truth is , such salt is very vnsauorie , and such courses very corrupt : for if they be suffered to taunt Hyperbolus a lewd fellow , they wil not spare Pericles an excellent man , ( as Cicero well affirmeth in the person of Scipio Cicer . lib . 4. de rep . : ) for he was likewise more then nipped of Aristophanes , and Eupolis . And S. Augustine reproueth such meanes of reprouing , saying grauely , wisely , and diuinely : Iudicijs ac Magistratuum disceptationibus legitimis propositam vitam , non poetarum ingenijs habere debemus D. August . d . li . 2. c . 9. : And disorderlie persons , as Cicero saith well , a censore melius est quàm a poeta notari : rather of a Censor which is Magister morum : then of a soure Satyrist or gibing comical-poet , which is Corruptor morum , & such faults are rather to be rebuked of a preacher curing with his zeale , then scurrilously touched of a prater wounding with his stile : for such carpers ought to take religious heed least tincta Lycambeo sanguine telagerant : 5 The deuisors and publishers of libels punishable by the ciuill law . 6 The canon law is seuere against such . But that I may shew what our lawes haue ratified touching this abuse : if any man do deuise any slanderous libell against one , & it happeneth that another findeth it , and he doth not cancel it & teare it in peeces , but doth publish it to others , he is punished with capital punishment ff . de iniur . l. lex torm . ent . §. si quis liberum . , and so is the author likewise punished Azo . in sum . C. de iniuri . .

Canonol .

Wee account in our law such detraction to be summam iniquitatem , & the censure of our law is that omnis qui detrahit fratri suo homicida est c . 1. de maledi . 6. .

Anglonomoph .

Our law is to charitable dealing a mother , and therefore it alloweth the administration of goods circa funeralia , though it be done by a stranger , who hath no authoritie to intermeddle 21. H. 6. 28. : because it is a worke of charitie 21. E. 4. 5. : but slaunder and diffamation , 7 Reprooachfull speeches punishable at the common law by an action vpon the case . which blemisheth the good name of others it detesteth and vtterly disfauoureth , condemneth , & punisheth as a stepdame vnto rancor & violent speeches the abortiue children of malice . Wherefore an action vpon the case will lye at our law for calling the plaintife theefe 27. H. 8. 22. : and for calling the pl a false and periured man 28. H. 8. Be . Acti . sur le case . 3. 30. H. 8. Br. Acti . sur le case . 104. : so an action vpon the case lyeth for calling the pl false iustice of peace 4. E. 6. Br. Acti . sur le case . 112. . But to publish one for his villaine , who in truth is his villain is no slander nor actionable 2. E. 4. 5. : nor to publish one to be a bastard , who is in deed a bastard , if the defendant doe make title to the bastardes lande , and did therefore tearme him bastard that the matter might bee produced into question and triall 25. Eliz . Banisters case . .

Nomomath .

Enough of this , wee will passe now to other matters .

The third Dialogue . Of Dettes . NOmomath .

I pray you let me know Codicgnostes all the waies & meanes wherby one man may become indebted to another , so that remedie may be had by processe of law for the debt .

Codign .

A dette may grow by writing or especialtie : 1 Dette may grow by writing or especialtie . as when the dettor confesseth himselfe to bee obliged and bound to his creditor , and such bond or obligation may be by deede indented sub eadem forma verborum , & by mutuall deliuerie it becommeth the deed of them both l. seruum filij . § eum qui chirographum . ff . de leg . 1. . Such a kind of writing wee call instrumentum priuatum , 2 An obligation may be by deed indented at the ciuill law . because it is done in the name and by the hand of a priuate man , not in the name of any king or prince : and this kind of instrument ought to haue the subscription of three witnesses C. de proba . l. : but there is a priuate instrument of more solemnity , which is called of vs instrumentum garrantigiae , 3 What instrumention garrantigiae is at the ciuill law . an instrument of warrantie , vpon which a man shall haue present execution : as if it do specifie that one man is indebted to another , this being presently exhibited in place of iudgement , the iudge ought presently to awarde execution ff . de re iudi . : and such writings obligatorie if they haue any razure in them in any materiall place are of no credit in law c . ex liter . in glo . 2. de fid . instrument . : and there bee in our law three sorts of bonds , 4 Three sortes of bonds by the ciuill law . Naturalis , Ciuilis , Praetoria . Naturalis is , when as by mutuall contract one of the parties becommeth mutually bounde to the other . Ciuilis , is that which is made in forme of law , whereof we haue aboue spoken , wherein one of the parties confesseth and acknowledgeth himselfe to bee indebted to the other in a certaine summe of money , and bindeth himselfe for the payment of the saide summe . Praetoria , which is deuised and conceiued of the Pretor , and Iudge , in precise termes specifijng the debt Insti . de obli . in prin. . Likewise debt may accrue vnto one by way of contract , 5 Dette may grow by way of contract . which is nothing els but the consent of 2. persons for a thing to be done or giuen by the one to the other , and it is on both sides obligatorious de pac . l. 1. §. 1. : for if two doe consent in this true proposition : Titius est homo , or in this false assertion , Titius est Asinus , yet this is no contract , because non vtrobique obligat Gazalup . verb . pactum . : for if the wordes or acte be obligatorie , then the contract is obligatorie , as contrariwise , if the words or acte tend to acquittance , then the contract is nothing els but an acquittall , as if the creditor doe redeliuer the writing obligatorie vnto his dettor , this is an acquittance in lawe : for otherwise the redeliuerie should worke nothing ff . de pac . l. labeo . : but if the creditor should redeliuer a pledge vnto the dettor , this will not amount to any acquitall or release of the dette , because the redeliuerie in that case may haue an other effect , namely the vse of the pledge for a certaine time l. sequent . ff . co . ti . : And if the instrument or especialtie of the dette be come to the hands of the dettor , the law will intend prima facie that it was redeliuered by the creditor in lieu of an acquittance l. si chirograph . ff . de pig . : but this must be limited with this restreint , if the dettor be a meere stranger in facto vnto the creditor , but if he be his seruant or one of his familie , conuersing in house with him , then the intendment will bee otherwise : for then the law will presume that he might easily come by the bond without the priuitie of the creditor l. vnica . §. ille . C. de lati . li . col. .

Canonol .

I haue not at any time obserued any thing in our lawe which maketh head against these determinations of lawe by you mentioned . 6 The canon law agreeth with the ciuill in matters of bonds or dettes .

Anglonomoph .

Our law with some of these assertions fully agreeth , and from some flatly disagreeth , as I meane to manifest by examining in order the particulars of Codicgnostes his speech . 7 Dette may grow by contract by the common law . Dettes with vs may grow many waies , and euerie way an action of dette will lye : for it may grow by contract as Codicgnost . hath auowched . For if the husband sell trees growing vpon the land of his wife , and the wife dieth before they be cut downe , yet the husband may maintaine an action of dette : so it is of a vendition by the tenant in taile : so where a man hath a horse by wrong and selleth him to another for a certaine summe of money , and before the deliuerie of the horse , he dyeth , or the owner taketh him away , yet an action of dette lyeth vpon the vendition 18. E. 4. 6. . So if a man sell ten acres of land to another for ten pound , and after he will make no assurance of the land , yet he may maintain an action of dette for the money , and the other is put to his action vpon the case , but if it bee agreed , that the assurance shall be made before a certaine day , and the ten pound to be payed vpon the perfecting of the assurance , then the lawe is otherwise . For if hee make not the assurance before the day , but after hee shall not haue an action of dette for the ten pound 22. H. 6. 50. {per} Newt . . But if a tailor doe make a garment for mee , if we bee not agreed before what I shall pay for the making , hee can not haue an action of debt , otherwise it is for victuailes and for wine 12. E. 4. 8. . Likewise an action of debt lyeth vpon a loane of money , 8 An action of debt lyeth at the common law for a loan of money . 9 An action of debt lyeth at the common law for a meer duety . made by the creditor to the debtor Fitzh . N.B. 119. G. : or it lyeth for a meere dutie , as when an Attourney bringeth an action of debt for money expended in the suite of his client Fitzh . N.B. 121. L. 10. H. 4. Dette 158. 3. E. 4. 29. : or vpon an obligation , as when the especialtie is Nouerint vniuersi me teneri &c. And after the deed saith , ad fideliter computandum de proficuis , in this case the obligee may vse an action of debt , or an action of accompt at his pleasure 41. E. 3. 10. 42. E. 3. 9. 28. E. 3. 98. . Vpon which case Baker 28. H. 8. in Cores case thus distinguisheth , that if the deliuerie of the money were to this intent , that an increase or profit might rise of it , and not that money might be repaied , there no action of debt will lie , but a writte of accompt onely 28. H. 8. 20. Dy . Cores . C. . And if a man do make a contracte to paye certaine money for a thing bought by him , 10 An obligation made after a contract dissolueth the contract by the common law . if hee make an obligation for the money , the contracte is discharged , and he shall not haue an action of dette vpon the contracte 9. E. 4. 25. 28. H. 6. 4. 21. H. 7. 5. 1. H. 6. 8. per Bab . 20. H. 6. 23 35. E. 3. det . 83. . But if a man make a talie , and writeth wordes obligatorie vpon the talie , and ensealeth it and deliuereth it as his deede , yet this shall not binde him , but hee may pleade nihil debet against it , or may wage his law , for an obligation ought to be writte in parchment or paper , and not vpon a peece of wood 25. E. 3. 40. 44 , E. 3. 21. 2. R. 2. dett . 4. 12. H. 4. 13. . But the Queene may maintayne an action of dette against her Farmour vppon such a talie 5. E. 4. 10. . And a man shall not be fined for denying a talye ensealed 4. E. 2. en le title de fine . . And whereas you say that a man may bee bounde by deede indented , that is likewise so with vs : For if one acknowledge himselfe by indenture to bee indetted to another man in an hundred pounde : 11. A man may be bound by deed indented by the common law . for which hee deliuereth him certayne Veluet , that the other may sell it after the best manner that hee can , and to reteigne it for payment , and if any thing remayne of the dette , that hee will pay it , the other may sell the Veluet for twelue pence , and vse an action of dette for the remnant 18. E. 4. 5. . and 11. H. 6. an action of dette was brought for an hundred markes deuised by the last will and testament of A. being in the handes of the defendant , the def . by Indenture acknowledged that the said summe of mony remained in his hands , & the deuisee made his executors & died , & the abouesaid action of det was broght by the executors , & it was allowed : the law is likewise so of an accompt 11. H. 6. 46. . And if the words of an indenture be so : Ita conuentum est inter nos quòd A. soluat B. 20. li. ad festum Pasch . B. may haue an action of dett hereupon 30. H. 6. per Yeluert . Stath . Tit . Couenant . . So when a man maketh such a bill , namely this bill witnesseth , that I A. haue borrowed so much money of C. without saying more , this shall charge the executor as well as an obligation , and the testator could not haue waged his law against this bill : for these words recepisse , or debere , or teneri ad soluendum 20. li. doe make a good obligation and shall bind the executor : for euerie word which prooueth a man to bee dettor , or to haue a strangers mony in his hands , though it be by bill , yet it shall charge the executor 28. H. 8. 20. Cores c . per Fitzia . et Mountague . . As for your instrumentum garrantigiae , 12 A statute bond is resembled to an instrument of warrantie at ciuill law . an instrument of warrantie as you haue tearmed it , it is fully and proportionably resembled by a recognisance vpon a statute merchant or staple : for thereupon the partie to whom the reconisance is made vpon the certifying of the same in Court shall haue present execution . For if a stranger to the reconisance of a statute come into the Chauncerie and shew the statute , and pray execution , he shall haue it : and if a statute marchant be acknowledged to two , & one of them commeth into the court with the statute he shal haue execution in both their names 11. E. 4. 9. : And 17. E. 3. two sued a Cerciorari of a statute merchant , and after the Cerciorari returned the parties came not , but others , as executors profered themselues , and shewed forth the testament and praied execution , and had it 17. E. 3. 31. ; But the opinion of Hill is to the contrary 18. E. 3. for a Ceciorari was sued vpon a statute merchant , and before execution the plaintife died : wherefore Greene praied execution for executors ; But Hill said , that he should haue sued a Scire facias for the the executors , for it may be that the testator hath released : Wherefore you must sue a Scire facias out of the certificat 18. E. 3. 10. . And vpon a statute staple the partie shall haue execution of the bodie , landes and goods by one writ : And vpon a statute merchant , first a Capias till a quarter of a yeare be past , and vpon a retourne of Non est inuentus , the partie shall haue a writ to haue execution of his lands and goodes 15. H. 7. 14. Fitzh . Nat. bre. 131. D. . And a man may sue an action of Dette vpon a statute staple , vpon a statute merchant , and vpon any other recognisance Fitzh . Nat. bre. 122. D. et fol. 17. . And whereas you haue said , 13. A deede razed is not good at the common Law . that a deede razed is not good in your Law , no more it is in ours , if it be razed or interlined , and in such case the obligour may conclude his plea , if he be impleaded in an action of Dette , with a Non est factum 1. H. 7. 14. Doues C. per Keble . . And whereas you haue affirmed that there be three sortes of bondes in your Law , Naturalis , 14. The common Law agreeth in substance with the Ciuill Law in the three sorts of bonds . Ciuilis , and Praetoria : For the first two I haue shewed that our Law agreeth with yours : and as to the last it agreeth in the substance of the thing , though not in the sound of the name : For an action of Dette may by our Law be brought vpon a recouerie or iudgement conteining the dette . For if a man recouer dammages in a writ of Wast , he may sue a writ of Dette vpon this recouerie , if he will Fitzh . Nat. be . 122. C. 20. H. 7. 3. . And so for dammages recouered in a Redissesin , a writ of Aiel , Cosinage , and a writ of Entre sur disseisin 43. E. 3. 2. . But in that you said that the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance , 15. The common Law dissenteth from the Ciuill , in not making the redeliuerie of , a bond an acquitance . this is not so in our Law . For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede , as for him who maketh a deede , to make it a deede : as where as it is ensealed , he may break the seale : and whereas it is deliuered as the bond of the partie , he may redeliuer it in steede of an acquitance 1. H. 7. Dones C. per Fin. : Yet it is better aunswered by Mast . Keble , that a redeliuerie may be either of a deede executorie , or a deede executed : The redeliuerie of a deede executorie hath some operation in Law ibi . per Keble . , ( as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed : if I.S. deliuer the scroule back to the bailor , before the deliuerie of it to I. N. and before the condition perfourmed , the bailor shall not anie way be charged by vertue of this bond : But if it had been deliuered at the first as his deede to I.N. vpon a condition perfourmed Perkins Tit . Faits . : ) Now the redeliuerie of it nequè ligat , nequè soluit , worketh nothing : because a deede can haue but one deliuerie , and if the first deliuerie be good , the second is voide , if the first be not good , the second may be good 1. H. 6. 4. . And so it is of a release executed : for if a man be disseised , and after release to the disseisor , and after the disseisor redeliuereth the deede of release to the disseisee , and saith that he will not haue aduantage of it , yet this is to no purpose : for by the release executed no right may bee demaunded by him to whom the deede is redeliuered : but a right may be defended by him who is in possession , to whom the first deliuerie was 1. H. 7. Dones c . per Vauisor & Keble . . ( But if the disseisee reenter vpon the disseisor , and the disseisor bringeth an Assise , and hath not the deed of release readie to intitle himselfe to the land , the other may still hold possession of the land : but then the redeliuerie of the deede of release doth him no good directlie , but onelie per accidens , because the want of it doth hurt to the disseisor . )

Nomomath .

Now I pray you resolue vpon this , whether shall the Executor or Administrator be charged in all respects with the dettes and Legacies of the testator , or how farre forth they shall be charged : For I accompt a Legacie to be a kind of dette .

Codicgn .

1. By the Ciuil Law the Executor succeedeth in vniuersum ius defuncti . The making of an Executor , which of vs is tearmed haeredis institutio , is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will C. de haere . l. 1. , which is not of force till the death of the testator , but vntill that time it is kept clausum & signatum , and as Isiodore saith , rather according to the truth of the thing , then according to the true deriuation of the word ( as manie times he doth ) it is therefore called Testamentum , quia non valet nisi post testatoris monumentum , vntil the testator be laied in his graue Isiodor . li . 5. . And such Testaments must be insinuated to the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator : 2. Insinuation of a wil necessarie by the ciuill Law . which insinuation is appointed by Law , Ad euitandum falsitatem , et sciendum veritatem Testamenti L. iubemus . C. de test . l. fi . C. de fidei . com . . But de iure Praetorio though a Testament be not made , yet some person may be appointed by the Praetor to administer the goodes Iusti . de bo . poss . §. 1. et ff . eo . Tit . . And as well the administrator , 3. By the Ciuill Law the executor or administrator ought to make an Inuentorie of the goodes of the partie deceased . as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they succeede , which shall come to their handes . And it is a good and safe waie for them so to doe : for if they doe so they shall not be charged further with anie debtes then the goodes of the testator , or him that died intestate will extend . And such an Inuentorie by our Law cannot be disprooued , vnlesse the number of the witnesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it , which are commonly called Prizors cum Io . de fi . instru . . And the Inuentorie ought to be begun by the Executor within 30. daies after the death of the testator , or at least within 30. daies after that he hath notice that he is made Executor : and it ought to be finished or consummated within thirtie daies after , or at least within a yeare after , if the thinges be farre distant , and dispersed in remote places , and then he shall be charged no further , then the goodes will stretch : otherwise he shall be charged in solidum for the whole dette Gazal . in verb . Inuentar . .

Canonolog .

These thinges which you haue proposed are not reiected of vs , but are of validitie in our Law .

Nomomath .

I pray you Anglonomoph . rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can : for these things vttered by him are of great importance and vse at this day : wherefore I would haue you studiouslie and with care to discusse these things .

Anglonomoph .

4. The power of the Executor dependeth wholie vpon the will of the Testator by the common Law . In the substance of these matters which he hath mencioned , I doe not see at the first glimse any discordance in our Law , but in the circumstance there will be some dissonancie , and variance . First to speake of the power of an Executor by our Law , it dependeth wholie vpon the will and designement of the Testator : For if a man make three his executors , and all refuse the administration but one , yet the others shall be executors by vertue of the will , and may administer when they please , and an action ought to be brought in all their names , otherwise the writ shall abate . And if a man haue goodes in diuerse Prouinces , he may make his executors of his goodes in one of the prouinces , and die intestate as to the other goodes : And if the Ordinarie doe commit the administration of the goodes which are in the other prouince vnto him , now is he both executor and administrator 35. H. 6. 36. . And 4. H. 6. in an action of Dette brought by the Executors vpon an Obligation , the defendant demaunded oier of the Testament , and he had it , and the plaintife shewed forth a Testament nuncupatiue , being thus in effect : Memorandum quòd A. constituit B. et C. executores suos , and this was vnder the seale of the Ordinarie : and the opinion of the Court was , that this was sufficient matter to maintaine the action 4. H. 6. 1 : and if there be not speciall caution to the contrarie . By our Law likewise the executor doth vniuersally succeede in the right of the goodes of the dead , and he may enter into the landes of the testator to take the goodes P. 9. H. 6. Stath . Tit . Execut . ou Entr. . But if a man deuise goodes to one , and die , the deuisee cannot take the goodes without the deliuerie of the executor 37. H. 6. 30. 11. H. 4. Execut . 58. per Thirn . . And the executors do so fullie , and viuelie represent the person of their Testator , that if an action of Dette be brought against two executors , and the one of them pleadeth misnosmer , and the other pleadeth that he is administrator , and not executor : the opinion of the Court was that they should not haue both pleas , because they did represent their testator , who could haue but one onely plea 37. H. 6. 30. 7. H. 4. 13. . But it seemeth by the booke of 8. Ed. 4. that they shall haue seuerall pleas , and the most peremptorie shall be tried 8. E. 4. 24. Execut . 31. . And an executor or administrator may haue a writ of Error vpon a iudgement giuen against their Testator concerning dette or dammages Fitzh . Nat. bre. 21. M. . And that a testament and a deuise are of no force till the death of the deuisor , 5. According to the common Law a Deuise is of no force vntil the death of the deuisor . may appeare by diuers good authorities in our Law Littlet . lib . 2. c . 10. sect . 8. 27. Ass. pla . 60. . And whereas Codicgn . hath said , that by their Law there must be an insinuation of the will to the Bishops Officiall , 6. The common Law agreeth with the Ciuill in the insinuation of willes . doubtles it is so in our Law , for there must be such an insinuation and probate of the will , before the executors may bring anie action of Dette 7. H. 4. 18. 10. Eliz . Com . Brets c . et en Greyst . case . . And the Ordinarie may sequester the goodes of the dead , vntill the executors haue prooued the Testament : And the Metropolitane may do the same , if the goodes be in diuerse dioceses 9. E. 4. 33. . But our Law differeth from the Ciuill Law in this , that the administration of the goodes of him that dieth intestate is not committed by the Praetor , but by the Ordinarie : For if a man be indebted , and die intestate ; or if the Executors of one that hath made a Will refuse to be executors , whereby the goodes do come to the handes of the Ordinarie , the creditors may haue a writ of Dette against the Ordinarie by the statute of Westminster 2. cap . 19 Fitzh . Nat. bre. 120. D. . and in this case he must be sued by the name of Ordinarie 9. E. 4 34. . But after administration committed the Ordinarie shall not be sued 8. Elizab . 247. Dy . . And if Sede vacante , the Deane and Chapiter be gardian of the spiritualties , if a man doe then die intestate , and the Deane onelie administreth the goodes , it is sufficient for the Creditors to vse an action against the Deane onely : Otherwise it is if the Deane and Chapiter as Ordinarie should vse an action 17. E. 2. Br̄e 822. . And so if the Ordinarie make his executors and die , 7. That an action of Dette will lie against the Ordinarie . the Creditors may haue an action of Dette against the executors of the ordinary Fitzh . N.B. 120. D. Vieux Nat. br . 61. : though 11. E. 3. in the title of Executors be directly to the contrarie 11. E. 3. Executors 77 . But a man shall not haue an action of Dette to charge the Ordinarie ( as Ordinarie ) vnlesse he doe administer in his owne dioces 12. R. 2. Administr 21. . But the Ordinarie can not haue an action of Dette against such which were indebted to the partie intestate , because that action is giuen to the Administratour , and the Ordinarie may commit the administration of the goodes when it pleaseth him . But before the statute of king Edw . the 3. ann ' 31. ca. 11. the administrators could not haue an action of Dette : therefore it seemeth before that time the Ordinarie might haue vsed an action of dette , otherwise remedie should haue failed Fitzh . N.B. ibid . . but the Ordinarie may & might at all times haue had an action of trespasse for the goods of the dead taken out of his owne possession 18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12. : but not for goods taken out of the possession of the partie intestate 17. E. 2. Briefe 822. . But if the Ordinarie without formall letters of administration granted , do giue one licence and authoritie to sell the goods of the partie deceased intestate quae peritura essent , and he doeth it accordingly , he which doth so administer shal be punished as an executor of his owne wrong 9. Elizab . 256. Dy . . neyther can hee commit administration by word of mouth , otherwise it is if it bee entred into his register though letters of administration bee not formally drawne 21. H. 6. 23. . And it may come in issue whether he that granteth administration were Ordinarie in the place where the administration was committed , as if the village doe extende into two dioceses 35. H. 6. 46. . And it may come in issue whether administration were committed by the Ordinarie . And whereas Codicgnost . hath also affirmed , that if the executor or administrator doe make an Inuentorie , 8 The Canon law agreeth with the ciuill in administring the goods comprised in the Inuentorie according to the testament . and dispose the goods comprised in the same according to the testament of the partie and appointment of lawe they shall not bee further charged , our lawe in this consorteth with the ciuill law : for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plaintife 7. H. 4. 10. Plowd . com . 277. : for though hee doe pay debtes vpon contractes , the writte depending against him vppon a bonde , whereas hee had no notice of the suite , he shall not bee in such case charged 2. H. 4. 21. . And 3. H. 6. in an action of debt vpon an obligation of twentie pound brought against executors , they pleaded riens enter maines , that they had nothing in their hands , and it was founde by verdict that they had tenne pound in their handes : wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade , and the dammages of the goodes of the executors for their false plea 3. H. 6. 4. . But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vpon such a plea but onely the goodes of the dead Dauis . C. com . 440. . But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a deuastauerunt , wherefore the Court did graunt a writte to haue execution of the goods of the dead , and if there were no such goods , then of the goods of the executors 11. H. 4. 70. . And 4. E. 3. in an action of dette brought against the executors , it was found that they had fully administred , and the opinion was , that the Iurors should set downe incertaine how much they had administred , because they shall not bee charged but onely according to that which is found by inquest 40. E. 3. Statha . Tit . executors . . But it was said 34. H. 6. that when the executors doe plead ( fully administred , but onely for so much ) & their plea is found , the plaintife shall haue iudgement to recouer all his dette , but he shall not haue execution but onely of the goods in their hands 34. H. 6. stath . Tit . Execut . . But it is good to bee considered what may properly bee saide assets in the handes of the executors : 9 What may properly be said to be assets in the hands of the executors . if the executors doe merchaundize with the goodes of the testator , the increasall of them shall bee assets in their hands , and shall charge them , and they cannot plead that they haue fully administred when they haue such assets 11. H. 6. 35. per Bal . . And if executors doe sell the goodes of the testator , and doe buy them againe , they remayne in their handes as assets , because they were the same goods which were the testators 18. H. 6. 4. . ( But then it seemeth that the money which they had for the sale of the goodes was wasted by them , and not conuerted to the vse of the testator : for otherwise there is no reason , but that they should haue a propertie in them to their owne vse ) for if the executors pay the debtes of the testator of their owne goodes , they may retaine the goodes of the testator to the value in their handes , to their owne vse 6. H. 8. 2. Dy . . But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one , and 30. li. to another , & dieth ; and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remaineth in their hands shall bee assets 27. H. 8. 6. per Fitzh . . And so a gage being ransomed shall bee assets in their handes , but according to M. Frowikes opinion it shall not bee assets if it were ransomed with their owne money 20. H. 7. 2. : But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge , being gaged to their testator shall bee assets in their handes . So it hath beene adiudged , that if a man make a feoffement vpon condition that the feoffee shall sell the lande , and distribute the money to the vse of the testator , whereupon he selleth the land , and the feoffor maketh him his executor , the money taken for the land sold shall be adiudged assets in his hands 2. H. 4. 21. Executors . 51. 3. H. 6. 3. . So if the executors pleade ( fully administred ) and it is found for them , and after certaine goodes of the testator come to their handes , wherefore he which brought the first action of dette bringeth the same against them againe , this action is well maintenable 7. E. 4. 8. per Littlet . & Danby . .

Nomomath .

You haue satisfied mee for this point Anglonomoph . Now I pray you Codicgnost . strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes . I haue reade that in ancient time it was a law amongst the Romans , that if a man greatly indebted were not able to discharge the dette , 1 The rigorous law of the Romanes in their execution for dette . his bodie was mangled and cut in peeces , and the greatest portion of it giuen to his greatest creditor , a lesser to him to whom he did owe lesse , and so pro rata Paul . Manut . lib . de legi . Roma . : which lawe beside the monstrousnesse of it in such a common weale was verie inhumane : for the creditors might , if they would in their furie , by this law cast the members and partes of the bodies of their debtors to dogges , and other brutish beastes , so that that the Romanes had not so much care of their Senators , gentlemen and citizens , as the friendes of Diogenes had of him . For when the Cynicke laye vpon his deathbed , his friends which were then about him , asked him in curteous manner , where he wold be buried , he thinking perhaps that a man was nothing but a mind , answeared them that he would bee buried in the dunghill , and they replyed that that would be verie inconuenient : for the dogges would then rake him vp and deuoure him : Then ( said he ) lay some staues by mee to beate away the dogges ; but they told him that hee could haue no sence in his bodie after his death : then ( quoth he ) what neede I feare the dogges . This was but the glaunce of Diogenes , who made more accompt of his scoffe then his state . But others more ciuill doe thinke it a great losse , shame , and indignitie that a mans bodie should not be buried , 2 The execution of the Romanes greatly to bee reproued , because it did depriue men of buriall . wherefore Lucan sharpely inueyeth against Caesar : Tu , cui dant paenas inhumato funere gentes Luca . lib . 7. : And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debarred from sepulture . Romulus though hee had caused to be slaine his brother Rhemus , and after his death did continue his fury as his speech importeth : Sicque meos muros transeat hostis ait . Yet he gaue him sepulture , and attended vpon the hearse himselfe : for as the Poet saith Oui . Fasto . 4 : Dat tamen exequias , nec iam suspendere fletum Sustinet , & pietas dissimulata patet : Osculaque applicuit posito suprema feretro , Atque ait : inuito frater adempte vale . And therefore the Ambassador of Darius doth exceedingly praise the great curtesie of Alexander mourning for the death , and hauing speciall regard of the sumptuous sepulture of the wife of Darius his professed enemie : Vultum tuum video qualis Darij fuit cum dimitteremur ab eo , & ille tamen vxorem , tu hostem luges . Iam in acie stares , nisi cura te sepulturae eius moraretur Curti . li . 4. . And Salomon saith diuinely : If a man begette an hundred children , and liue many yeares , and the daies of his yeares bee multiplyed , and his soule bee not satisfied with good thinges , and hee bee not buried , I say that an vntimely fruite is better then hee Ecclesiast . c . 6. v. 3. . Then surely ( that I may recourse vnto that from which I digressed ) for the Romans to adde shame to affliction , and when the hard debtor is not able to maintaine himselfe with meate and apparell in any reasonable sort , after straite imprisonment and extreame want , to cutte his bodie in peeces , and to distribute it in recompence of of vile money , is a thing verie immane , and in my opinion greatly obscuring the bright and glorious dignitie of the auncient Romane common weale . Miserable doubtlesse is the state of them which haue nothing but domi inopiam , foris aes alienum , malam rem , spem multo asperiorem , & nihil reliquum praeter miseram animam Salusti . in Catilin . . The Lord in his yeare of Iubilie signifieth his pittie towarde decayed persons . Septimo anno facies remissionem , quae hoc ordine celebrabitur . Cui debetur aliquid , ab amico vel proximo , ac fratre suo repetere non poterit , quòd annus remissionis est domini Deuteron . c . 15. . And to preuent the cautelous sophistrie of miserable worldlings hee giueth this caueat . Caue ne forte subrepat tibi impia cogitatio , & dicas in corde tuo : appropinquat septimus annus remissionis , & auertas oculos tuos a paupere fratre tuo nolens ei quod postulat mutuum comodare , ne clamet contra te ad dominum &c. Augustus Caesar that wise Emperour was of so mercifull disposition that for establishment of peace and concord amongst the Romanes , he relieued the common stocke , which was greatly impaired by ciuill warres with his owne priuate wealth , and them that were indebted to the common treasurie , the billes of debt being burnt with his owne hands hee did free from the daunger of the roll Dio . Nicae . in vit . August . Carol . Sigo . in fi . lib . fast . & triumph . Roma . . Mercy doubtlesse , and pittie is to be extended to such as haue nothing to help themselues withall , & therefore doe not pay debts , because they can not : Non manca est voluntas , sed potestas mutila . To such I say mercy ought to bee exhibited . The richest man in the world , bee he neuer so good , is a greater debtor to God , then any man is to him : yet God doth forgiue , and will not man forgiue ? Quis persequeretur canem mortuum . What horsleach would sucke for bloud out of a bloudlesse member ? Bitter was that saying of tyranicall Tyberius to one that requested death , rather then long imprisonment : Nondum tecum redij in gratiam ? Blessed are the mercifull for they shall obtein mercie Mat . 5. v. 7. . I speake not this as if fauour should bee shewed to couetous churles , which had rather lose their bowels thē their bagges , and deuise fraudulent shifts and knottie conueiances to bereaue & defraud the creditor of his due debt : and wheras they may make payment in ten dayes , doe deferre it ten yeares . It were a blessed thing , if the bodies of such miserable Midasses might be changed to gold , whilest they were in prison ( so their soules might be saued ) that by such meanes at the least their creditors might be satisfied . But let euery Creditor vse conscionable discretion , and distinguish betwixt them and these that be otherwise minded .

Diuexet coruos , parcat censura columbis .

Let them vse mercie to such as be humbly minded , and anguished in hart , because they are not able to discharge their debtes : Let them remember that charitie seeketh not her owne : that she freeth the bondman : cheareth the weake : fatneth the poore : doth good against euill . Some think it great charitie to spare a mans goodes , when he hath but a little left , and to imprison his person : if that be charitie .

O mites Diomedis equi : Busiridis arae Clementes tu Cinna pius : tu Spartace lenis Claudi . lib . 1. in Ruffi . .

Let the Creditor think that he may fall into the same calamitie and extremitie himselfe which the dettor suffereth : And ( that I may vse the wordes of the noble-witted Curtius , ) Suam quisque fortunam in consilio habeat , cum de aliena deliberat . The Troians were once a florishing people : Ferus omnia Iupiter Argos transtulit Virg . in Aenei . : Troy a goodlie Citie : I am seges est , vbi Troia fuit Ouid . in epistol . . Hecuba in her youth a gallant Princesse , in her age a captiue , deploring her estate with Me videat et te Troia Senec . in Troia . . And Seneca the artificer of sorrow saith well : Quem dies videt veniens superbum Hunc dies vidit fugiens iacentem . Most diuine is the saying of that deepe diuine : I haue seene seruants on horses , and Princes walking as seruants on the ground Ecclesiast . c . 10. vers . 7. .

Codicgn .

You haue insisted a long time vpon a Law antiquated , 3. That the rigorous Law of execution for dette was afterward abrogated by the Romanes . and made a large comment vpon a supposed text : for the Law , which ministreth occasion of your copious discourse , though it were allowed and vsed by the Romanes for the terrifying of vnconscionable men , which made no scruple to ouerwhelme themselues with dette , and neuer to discharge it , or compound for it , or to shew any thankfulnes for it : yet when the horror of the punishment seemed grieuous and too shamefull vnto them , that Law for the bitternes of it was out of their authentike diskalendred : and manie yeares are past sithence it was repealed and abrogated Hotom . lib . illustr . quaest. . But now according to our Law execution lieth vpon the goodes of the partie which we tearme bona : 4. By the Ciuill Law execution for dette lieth vpon the goodes of the partie , & how far forth the word ( goodes ) extendeth . but the signification thereof extendeth further then the name of goodes at the common Law : for it signifieth res nostras quae sunt in dominio nostro , vel quasi : and it signifieth aswell inheritance as goodes .

Canonolog .

In this we dissent not from you .

Nomomath .

Let me know Anglonomoph . what maner of execution ye vse for dette at the common Law .

Anglonomoph .

5. A fourefold execution for dette by the common Law . The execution is foure-fold , either of goodes onely by Fieri facias , or of the moitie of landes by Elegit : or vpon all the landes by an Extendi facias , vpon the reconusance of a statute , or of the bodie by Capias ad satisfaciendum : euery of which by your pacience I will explane by cases and examples , or by shewing their originall . A Fieri facias issued out of the Eschequer for the king against a Parson for money due to the king out of an Abbey , 6. The execution of goodes by F●e●i facias is opened . to which the Church of the Parson was charged in xx . markes , and for two markes behind a Fieri facias issued to the Shirife in these wordes : Fieri fac . de bonis et catallis spiritualibus , et temporalibus prouenientibus de Rectoria de R. and the Shirife by his bailie tooke two bookes in the Church , and sold them for the kings dette 8. H. 5. 4. . And wheras A. did recouer dammages in a speciall assise before speciall Iustices , and brought an action of Dette for the dammages : it was resolued that the defendant was dettor of recorde , and therefore ought to be discharged by matter of recorde , and for that cause the Fieri facias is : ita quod habeas denarios hic , to the intent that the payment of the money to the plaintife may be of recorde , and the defendant discharged by recorde 11. H. 4. 58. . Execution by Elegit is warranted by the Statute of Westminster 2. cap . 18. which saith : Si quis recuperet debitum aut damna , sit in electione querentis , an habere velit Fieri facias de terris & catallis ( it should seeme to be meant de bonis & catallis ) vel quòd Vicecomes liberet , ( it seemeth to be better , et quòd Vicecomes liberet ei omnia catalla debitoris , exceptis bobus et affris carucae suae & medietatem , it seemeth more agreeable to the purpose , vel medietatem terrae suae , quousquè debitum fuerit leuatum per rationabile pretium et extentam . 8. Execution vpon statute merchant is opened . ) The execution vpon Statute merchant may appeare by this case . A man had execution out of statute merchant , and the Shirife returned an Extent of the lands of the reconusor in this maner , sciz . that he had sent to the baylie of the fraunchise &c. who had retourne of writs to extende the landes , which were within the fraunchise , and so he did , and that which was within the bayliwicke of the Shirife namelie in guildable , himselfe caused to be extended by parcels , and at the end he put the summe of the value , and after the summe he put the charges , as rents , and other charges which were due out of the said landes , and amongest other charges he retourned that the land was charged to the reconusee with xx . li. yearely for euer : And the Iustices cast all the charges of the landes , and the value , and they did perceiue that the charges passed the value by xl . s' . and after it was shewed that the Shirife had sent to an other Baylife of an other fraunchise in which the partie had lands , and of these landes he made the third extent , so that by that extent the value passed the charges by tenne shillinges , wherefore execution was awarded 29. E. 3. 1. . And 9. E. 3. one sued a writ to take the bodie of him , who had made a statute merchant to him , and the Shirife retourned that he was dead , wherefore he praied a writ to the Shirife to deliuer vnto him all the lands which he had the day of the reconusance , or at any time after , 8. Execution by Capias ad satisfaciendum is shewed . and he had it 9. E. 3. 24. . Execution by Capias and imprisonment is after this manner . Dammages were recouered against I. in a writ of Trespas in the kinges bench , in the time of king Henry the fourth , and after in the time of king Henry the fifth he was condemned in London at the suit of an other , and put in Newgate , and he at whose suit he was condemned in the kings bench had a Capias ad satisfaciendum to the Shirifes of L. which did send the bodie , and did certifie that he was condemned at manie mens suites in London , and now he that sued the Capias came into the Court and did acknowledge agreement to be made , and the defendant was readie to make a fine to the king , and praied to be deliuered : But because he was condemned in the time of an other king , and the Iustices which be now haue not knowledge of the persons , which were parties to the pleas in the time of an other king as the Law doth intende , and likewise , because if he be acquited heere , he must be sent backe into London , because hee is condemned there : and thirdlie , because by couin betwixt him which acknowledgeth agreement , and the defendant , he may defraud him at whose suit he is condemned of his execution : for if he be deliuered , the other is without remedie , therefore a Scire facias was awarded 8. H. 5. 7. . The like Law is in an execution vpon an Action of Dette , and in an acquitall , the fine to the king being excepted .

Nomomath .

Well , I will trouble you no further about questions of Dette . Now let vs passe according to the platforme of the conference to examine doubtes touching Accomptes .

The fourth Dialogue . Of Accomptes . NOmomath .

Suppose Codicgnostes that I deliuer vnto you my horse or hauke , to sell him for fyue poundes , and to deliuer me either the fiue poundes , or redeliuer the thing againe : Shall you not be accomptable to me in this regarde ?

Codicgn .

1. In what case a man is accomptable at the Ciuill Law per actionem aestimatoriam . Yes truelie , and that by an action which we call Actionem aestimatoriam , because it is conceyued vppon the speciall and prescript wordes of the valuation of the thing ff . de aestima . ac in rubro . et l. 1. et Insti . de actio . §. actionum . .

Anglonomoph .

2. The difference of a speciall bailie , and generall bailie at the common Law . So by our Law we haue a speciall bailie , and a generall bailie : A speciall bailie is he which is bailie after a speciall maner , and to a speciall purpose . For if a man deliuer an Obligation to an other to receiue so much money as he can get of that which is contained in the bond , if he receiue no money vpon the bond , a writ of Accompt lyeth not , but a writ of Detinue for the bond : ( But it seemeth that if hee receiue a lesse summe , then a writ of Accompt will lie : ) But if he receiue the verie summe conteined in the bond , then a writ of Accompt will lie against him , as receiuor of his money . But if his bailie be also bailie of his mannour , and this Obligation be deliuered vnto him as bailie of the mannour , then an Accompt will lie against him as bailie of the mannour habentem curam of this Obligation 2. R. 2. Accompt 46. : for a bailie of a mannour may well be tearmed a generall bailie . And Brian 2. R. 3. putteth an expresse difference betwixt a generall , and a speciall bailie : A man saith he may be bailie of a mannour , or of an house , if he be bailie of a manour , 3. What things belong to the charge of the bailie of a manour . he hath charge of all the oxen , horses , ploughes , belonging to the manour , and of all the profites arising , and growing out of the manour , and he shall be accomptable for them . But if he be bailie of an house he shall not be accomptable , but onelie for the house 2. R. 3. 14. per Br. . But this is the difference betwixt a bailie , and a receiuor , according to the bringing of a writ of Accompt . A writ of Accompt will not lie against one as bailie for a certaine and a peculier thing : But whereas A. giueth twentie pound to B. to merchandize for him , and to his vse , for the profite hereof , because it is a thing vncertaine , a writ of Accompt will lie , to the ende that by the writ of accompt the incertaintie may be brought to certaintie 9. H. 5. 3. per Hyl . . But in your case proposed , the bailie is to bee intended a speciall bailie . But this generall and currant rule we haue touching all bailies , as well generall , as speciall : If the bailie be preiudiciall to his his master , he is to make recompence to his master : 4. That by the common Law if the baile be preiudiciall to his Master , he is to make recompence . As if my bailie sell a quarter of corne for fortie pence , whereas he might haue sold it for vj . s ' . viij . pence , he must aunsweare for this 6. R. 2. Accompt 47. per Belkn . . So if he buy thinges for xx . pound , which are not worth x . li . he shall not be allowed this vpon his accompt , though he did as much as he could according to his knowledge 41. E. 3. 3. per Finch . . But if a baylie doe a thing which toucheth his bayliwicke , and which duetie bindeth him to doe , as if hee pay rentes or other dueties which are due of the mannour , he shall be satisfied for this : otherwise it is if hee doe any thing which toucheth not his bailiwike , for then hee ought to haue speciall warrantie 42. E. 3. 6. per Belkn . .

Canonol .

Our law dissenteth not from these assertions .

Nomomath .

Suppose I giue money to Titius to buy for mee and to my vse the land of Sempronius lying in dale , whether is Titius accomptable to me for this .

Codicgnost .

There is no question but he is ff . acti . man . dat . direct . l. si vero . §. fi . . but if your selfe or some other to your vse doe buy the lande of Sempronius , 1 By the ciuill law the bailie is discharged if the maister intermeddle . now is Titius discharged vnlesse he more expediently , and with lesse cost might haue bought it of Sempronius ff . eod . Tit . l. si procurator . §. mandat . act . .

Anglonomoph .

This is not repugnant to our law : and in all cases a writte of accompt lyeth where a man is put in trust to procure the profite of another , 2 That by the common law as wel as by the ciuill hee that is put in speciall trust to procure the profit of an other is accomptable . and is not his apprentice : for if the king graunt to a village certaine tolle of things which shall bee sold in the same village , and the townesmen of the village make collectors to receiue the toll : if afterward the collectors will not make accompt hereof , they may haue a commission out of the Chauncerie to enquire who hath receyued this tolle or money , and to heare their accomptes and to determine the matter Fitzher . N. B. 119. f . 114. c . . And 8. E. 4. it was said by Nedham , that the Churchwardens of a certaine parish might haue a writte of accompt against their predecessors , but the parishioners could not 8. E. 4. 6. per Nedh . : And so the master of an hospitall may haue a writte of accompt against him that was receyuor or bailie in the time of his predecessor Fitz . N.B. 117. F. . And 30. E. 3. a writ of accompt was made by a master of an hospitall against one , as the bailie of his Church , and this forme of writ was allowed , and the action was brought by him as parson , he being not named parson in the writ , and yet the writte was allowed because hee demanded nothing which might continue to the Church for euer , as he must do in a Iuris vtrum 30. E. 3. 1. 13. H. 4. Accompt . 124. 29. E. 3. 60. . And 4. E. 3. a writ of accompt was brought for a receit of certain money in the time of his predecessor 4. E. 3. Accompt . 97. : and 34. E. 3. in a writ of accompt against one as the bailie of his woode , the pl declared , how the def . was the bailie of his wood to cut it , and to sell it ; and the declaration was allowed without saying that hee did any way administer : for this must come in by way of answere , and so the writte may bee against the bailie of a mannor habentem administrationem bonorum : & Moubrays opinion was that the bailie of a wood ought to make account for the fruits of the trees , herons and hawkes 34. E. 3. Accompt . 131. . But a writ of account cannot be brought against one as his bailie , vnlesse he be the bailie of his house , land or mannor 9. E. 3. Accompt . 95. . And if one ought to be bailie by reason of his tenure though he do not occupie the office , yet he shall be charged in a writt of accompt 18. H. 8. 2. . And if a receiuor or bailie do make a deputie , yet the writ of account ought to be brought against the bailie himselfe , or against the receiuor himself , & not against their deputies : for the deputies resceiue the money , and administer the goods to the vse of the master Fitzh . N.B. 119. B. . but a writte of accompt will lie for the receiuor against his deputie , as for the vicount against his deputie 11. R. 2. Accompt . 48. . And a man may haue a writte of accompt against a woman as receptrix denariorum 8. E. 2. brief . 847. Fitzh . N. B. 118. D. . And 4. E. 4. there is an excellent difference taken where a woman is bailie or receiuor to a man , and after she taketh a husband , a writ of account lyeth against them both ( as econuerso it lyeth for thē both 28. H. 6. 7. : ) de tempore quo &c. dum ipsa sola fuit : but whereas a man & a woman be receiuors , & they after entermarie : in the writ they shal be both named receptores 4. E. 4. 26. 19 H. 6. 5. : but a writ of account wil not lie against an infant as bailie or receiuor to any man , because the law will not intend that any man will put confidence or trust in him who wanteth discretion , & experience . 17. E. 2. Accompt . 121. 16. E. 3. Accompt . 57. 27. E. 3. 77. 19. H. 6. 5.

Canonol .

There is nothing in our law which oppugneth any thing that you haue said .

Nomomath .

If the master of the baylie happen to die , whether may his executors charge the bailie with an accompt .

Codicgnost .

By our law they may ff . acti . mandat direc . l. si vero §. f . 1 .

Anglonomoph .

That likewise is warranted by our law : 1 Accompt ought to be made to executors by the ciuill law . for if any haue cause to haue an acti - of accompt against his bailie or receiuor , if he dye , his executors may haue this action , yet the common law at the first was otherwise 7. E. 3. 62 . But now it is altered by the statute of Westminst . 2. c . 23. and agreeth fully with your law in this : For 38. E. 3. one was bailie of a woode to two ioyntenants & a writ of accompt was maintained by the executors of him that suruiued 38. E. 3. 8. : to which accordeth 19. E. 3. and that the heire shall not haue a writte of accompt against him that was receiuor to his father 19. E. 3. Accompt . 56. : And 3. 2 The same is warranted by the common law . 3 That a writt of accompt by the common law will not lie against executors vnlesse it be in some speciall cases . Eliz . the administrator brought a writ of accompt 3. Elizab . 202. Dy . . But a writte of accompt will not lie against the executors or administrators of a bailie or receiuor for the receit and occupation of their testator Fitzh . N. B. 117. C. : vnlesse it be in the kings case Littlet . Tit . socage . . But if the executors doe once enter into an accompt , a writte of accompt will lie against them in the case of a common person 12. E. 4. 10. . Or if the bailie or receiuor bee found to bee in arrerrages of accompt , and die , an action of debt lyeth against his executors vpon an insimul comput auerunt 2. H. 4. 13. . And it appeareth by that booke that in the writ he must be named executor : and a bailie may haue a writ of debt against the executors of his master for a surplusage of accompt 13. H. 6. executor . 21. .

Canonol .

This I can not withstand by any reason in our law .

Nomomath .

I pray you let me know the force and substance of the authoritie which the master may giue to the bailie .

Codicgnost .

1 What authoritie may be assigned to a bailife by the ciuill law . It is no more but when a man may do a thing by himselfe , hee committeth it to another to be done of him Gazalu . verb . mandat . . And hee that doeth execute the authoritie ought not to exceed the limits of his authoritie Iusti . manda . §. si is qui . . But this difference we put betwixt an authoritie , 2 The difference of an authoritie a charge , and command by the ciuil law . a command , and a charge : The commaund is determined by the death of him that commandeth , the authoritie is not , neither is the charge , as by this verse though somewhat obscure is not obscurely signified In his de verbo sig . .

Praeceptum non praecipitat mors praecipientis : Mandatum mandatore cadente cadit . Canonol .

3 The canon law is against the difference so likewise is the common law . But some hold opinion , that all these three : authoritie , command , & charge doe expire by the death of him that commaundeth , chargeth , or giueth authoritie Ioan . 14. q . 1 quod praecipit . .

Anglonomoph .

In deed that is more agreable to our lawe especially in this matter of bailieship , as may appeare by diuerse authorities in our law 2. Eliz . 177. Dy . 5. Eliz . 219 Dy . 2 E. 4. 4. 10. Eliz . 270. Dy . .

Nomomath .

I pray you let me know the difference betwixt a bailie , a solicitor , an atturney , and deputie , that I may haue more distinct knowledge of that which I endeuour to know .

Codicgnost .

A bailie is he to whom a speciall charge of procuring a mans profite , 1 The difference betwixt a bailie , a solicitor , and attou●ney , and a deputie , is shewed out of the ciuill law . and the valuable increase of his wealth is committed Gazalup . in ver . villici . : an Attourney which wee tearme by the name of Procuator adiudicia is he which in place of iudgement doth for an other man by his warrant complaine or defend ff . mandat . l. 1. §. 1. : and this may bee done either in the presence or absence of the master : but a solicitor which of vs is tearmed Procurator ad negotia , is hee that handleth the cause of his master being absent . And an Attourney by our law must at the least bee of the age of XXV . yeares : but a sollicitor may bee , though he be but seuenteene yeares olde c . fi . de procu . l. 6 . A deputie is hee to whome a speciall authoritie is committed to deale in a certaine businesse c . de officeius qui vic . gerit . . And there is this difference betwixt a bailie or a deputie , and an attourney or a sollicitor : because in a baily or deputie the businesse which is committed to them , which we call negotium extraiudicium beginneth at the ministerial partie that is the bailie or deputie , and is transferred vnto the Lord or master : for the effect of the businesse whether it be profit or charge belongeth to the Lord : but the busines of the Attourney or sollicitor , which we call negotium in iudicio is originally in the Lord or master , & after ( as we say ) transfunditur in procuratorem , it is conueied to the attorney or sollicitor l. fi procurator meus ff . de neg . ge . .

Canonol .

2 The difference holdeth not in the canon law . We make no such difference in our law : for euerie one which doth administer an other mans busines , we cal by the name of procurator 1. q . 3. saluat . .

Anglon .

The common law doth in this more agree with that which Codicgn . hath said . 3 The common law according to the aforesaid difference doth more agree with the ciuil then with the canon law . I will speake of this difference as the cases in our law concerning it shall come to my memorie . The name and office or duetie of a sollicitor stretcheth verie farre in our law : for it may extend to the prochein amy the next friend , by whom an infant or one within age shall sue an action : or to the warden of the infant by whome the infant shall be defendant in an action 13. E. 3. Attorney . 76. 40. E. 3. 16. : And an infant was receiued to sue a writte of error by his warden 27. Assi . pl. 53. Fitz . N.B. 27. H. . And an infant shall not remoue hir warden , nor disauow his next freind , which sueth an action for him 34. Assis . pl. 5. 27. Assis . pl. 53. . But by a writte out of the Chauncerie the infant may remoue his warden , or the Court by their discretion may remoue him Fitzh . N.B. 27. M. 27. Assis . pl. 53. . But as to the making of an Attourney we haue this rule in our lawe . Nemo potest facere Atturnatum nisi habeat proprietatem in re , & ideo custos non potest facere Atturnatum quia non habet proprietatem 13. E. 1. Attourney . 103. . In a writte of Attaint the defendant made an Atturney in the Chauncerie by a common writte de Attornato faciendo , the tenor whereof was ad lucrandum & perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. petentem , & I. N. tenentem de placito terrae &c. but the warrant of the plaintifs attourney must be thus ad conuincendum 12. Iur . de placito terrae &c. per viginti quatuor &c. 2. E. 3. Garrant . dattour . 21. But the power & authoritie of the attourney is by the iudgement determined and carried backe to the master . Wherefore it was saide 4. E. 3. that after iudgement the attourney was not receiued to release the dammages , nor to acknowledge satisfaction 4. E. 3. Attourney . 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Gar . rant . 22. : contrarie to the booke of 33. H. 6. k But there is great difference betwixt a bailie , & a deputie : for though a bailie haue a larger scope of authoritie , and power then an atturney or sollicitor : yet he hath but an authority : but a deputie hath an imperfect interest mixt with an authoritie , which by cases accomodated to this purpose shall be euident . The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the Lorde : for I doe not take the booke of 2. E. 4. to be law , that the bailie may lease lands to hold at his owne will , yet that booke giueth an action of debt , if a rent bee reserued vpon the lease to the Lorde , not to the bailie 2. E. 4. 4. : but 8. E. 4. is the better law in my opinion , where it is helde , that the baily of a mannor cannot make any lease of the mannor , nor of any parcell of it without speciall commaundement of the Lord to doe it 8. E. 4. 13. . But if he cut downe trees , or kill any beastes going vpon the land of the manour , without lawfull cause , an action of the case will lie against him 2. E. 4. 13. . And 19. E. 3. it was held , that by no vsage in the world a Bailie or Steward of a manour could lease the freehold 19. E. 3. Feoff . 68. . But it is held by Cates by 8. E. 4. that the Lord may giue power ( in expresse wordes ) to his bailie to lease land , and if the bailie hauing receiued such authoritie doe lease an acre of land vnto a stranger , and doth not giue to the Lord notice thereof , if the Lord enter into this acre , the lessee may punish him by an action of Trespas , and yet he had no notice thereof : but the reason is because he had before giuen such a power to the bailie 8. E. 4. 1. et 9. Dutch . de Suffolkes c . per Cates b . . And therefore I thinke that the book of 2. R. 3. which is , that the bailie hath power to lease land , and to improoue it , is to be intended ( by speciall warrant , and authoritie of the Lord committed vnto him . ) But it seemeth that of himselfe he may sell trees if there be great abundance , and may repaire houses with them , but he cannot reedifie houses with them , if they be falne 2. R 3. 14. 12. H. 7. 25 . But that a deputie hath an interest conioined with an authoritie in the thing , which is deputed vnto him may be thus prooued , 11. Elizab . it was cleerely resolued , that two daughters being heires to the Constable of England , might make their sufficient Deputie to exercise the office for them , and after mariage that the husband of the elder onelie might performe the office 11. Elizab . 285. Dy . . And 39. H. 6. it was agreed by all the Iustices , that if a man haue an office , and maketh a deputie , which misuseth the office , the grauntee or inheritour of the office shall forfait it , for the deputie is sub officiario , and the officer remaineth officer vntill the forfaiture 39. H. 6. 32. . And these wordes ( that the deputie is sub officiario ) are so in my conceit to be vnderstood : as the lessee at will is vnder the lessor , in case of a demise of land : But there may be a forfaiture in the one case , and not in the other , because in the office deputed there is a speciall authoritie mixt with a speciall interest . And Quaere , whether for the dette of the deputie the office may not be extended whilest it is in the deputies handes .

Codign .

Surelie it seemeth that the deputie hath no interest at all in the office , 4. That by the ciuil Law , contrarie to the common Law , there is no maner of interest in a deputie . and that may appeare by the obseruation of auncient times . For if a man may compare greater things with lesse , the Quaestor of a Prouince was a deputie to the President or Gouernour of a prouince in his absence : but yet their power was diuerse , and the interest was not assigned , but resembled , as Caesar doth rightlie distinguish them : Aliae sunt legati partes , aliae imperatoris , alter omnia agere ad praescriptum , alter libere ad summam rerum consulere debet Caes . lib . 3. de bello ciuil . . The office of a Deputie or Lieutenant , and the office of a Gouaernour , or Commaundour are diuerse : the one of them ( that is the deputie ) doth all thinges by the prescript of his commaundour : the other freelie prouideth for the maine , and principall consequence of thinges . And briefely and substancially he thus describeth the duetie of a Deputie : Officium legati fiduciariam operam obtinere Caes . lib 2. de bel . ciui . : And that a deputie is but as a minister to the principall officer , may appeare by Ciceroes precept to his brother : Sit annulus tuus non vt vas aliquod , sed tanquam ipse tu , non minister alienae voluntatis , sed testis tuae Cicer . ad Q. fratr . . Let not thy ring be as a vessell to be vsed at any mans pleasure , but as thy selfe , not as a seruant to an other mans will , but as a witnesse of thine owne .

Nomomath .

What if the Master doe promise vnto his Bailie or Attourney , that if he can procure him the possession of the land in question , he shall haue the halfe , or some part of it for his rewarde : Will your Lawes allow of such an assumpsit ?

Codicgn .

1. Th●t the bailie or attourney may not take halfe the land for purchasing or compassing the other half . Our Law doth not allow it : But he may safelie take a speciall collaterall reward for that particular effect Gazalup . in ver . procurat . .

Canonolog .

So in our Law , he that giueth part of the profites of a benefice to be admitted to the benefice , 2. That the like matter is forbidden by the Canon Law . is so far from being allowed , that his fault is accompted to be enorme , and indispensabile 13. disti . nerui . : For it is held to be simonie , & corrupt cheuisance , if any valuable consideration be giuen in such regard pacto , velfacto . And he that buyeth so , is called Simoniacus of Simon Magus , and he that selleth so , is called Gieziticus of Giezi r . q . 1. Studet . .

Anglonomoph .

In our Law it is held , 3. The common Law agreeth with them . that there is no diuersitie , where a man selleth land depending a writ petitorie of the same land , or doe giue it depending the writ : for in both cases there is Champertie 8. E. 4. 19. .

Nomomath .

I praie you let me know whether anie persons be accomptable by the meere and sole operation , and enforcement of Law .

Codicgn .

Yes , there be two sortes of accomptes : publike , and priuate . 1. Two sortes of accomptants by the ciuill Law . The publike accomptes are such as are to be made by a publique officer , who is charged with some speciall administration appertaining to the common weale L. officialis c . de epis . et cler . . For the Presidents of Prouinces amongest the Romanes did customablie vse to make vp their accompts before they departed out of the Prouince , to which accompt they were obliged by Law : Therefore Cicero saith : Illud certe factum est quod Lex iubebat , vt apud duas ciuitates Laodicensem et Apamensem , quoniam ita necesse erat , rationes confectas et consolidatas deponeremus Cicer . ad Rufum . . Priuate accomptes are such as belong to priuate men by the administration of their goodes or affaires , as the proxies or bailifes of priuate men .

Canonolog .

The same difference doe we hold in matters of accompt d.l. officialis ibid . . 2. Likewise by the common Law .

Anglonomoph .

3. And also by the common Law . And by our Law there be some which be accomptable by Law : some by a particular charge imposed vpon them , or vndertaken of them . And in the former case a writ of Accompt will lie , though there be no priuitie infacto , but onlie in Law . Wherefore Mast . Prisot said 33. H. 6. that the king might bring a writ of Accompt against one , as his bailie , who did occupie the land de son tort demesne , of his owne wrong . And the same Law is ( as he there affirmeth ) if a man occupie the manour of a common person de son tort demesne . And according to Wangf . opinion , if a man seise an Infant as wardein in Socage , and is not the prochein amy , yet a writ of Accompt lieth against him : but there he claimeth to the vse of the Infant 33. H. 6. 2. per Prisot et Wangf . . And the same Law seemeth it to be to Mast . Brooke Brook Accompt 8. , where a man presumptuouslie and of his owne head vndertaketh to be my bailie , a writ of Accompt will lie in such case : But if he enter to his owne vse , there it seemeth ( saith he ) that a writ of Accompt will not lie : for there Ne vnques son Receiuor pur accompt render , is a good plea . And 49. E. 3. a writ of Accompt was brought against the Lord by the tenant , as occupier of the land which the tenant now plaintife holdeth of the defendant in Socage , and the def . said that the auncestor of the plaintife did hold the land of him by knights seruice , wherfore he seised the land in warde 49. E. 3. 10. . By which case it appeareth that a writ of Accompt is admitted to lie against the occupier of the land without any priuitie in facto . And 4. H. 7. it is held by Brian , that if a man receiue my rent of my tenants without my assent , yet I shall charge him for the possession , and receit of the rent 4. H. 7. 6. . But a writ of Accompt will not lie against a disseisor , because that cannot be without priuitie in Law , or in facto , as by assignement , or as Warden , or in like sort , or by the pretence of the defendant of occupying to the vse of the plaintife 2. Mar. Br. Accompt 89. .

Nomomath .

I will not presse you any further with mouing doubtes of Accompts , but will now make transition to other matters that remaine to be discussed .

The fifth Dialogue . Of Wast done in a mans Ground . NOmomath .

The next matter that by order offereth it selfe to your conference , is to treat of Wast done in a mans land : And for my more perfit apprehension of the thinges concerning that point , I will prescribe vnto you certaine particulars , wherein you may imploy your trauell for my further instruction . First , of what things Wast may be committed . 2. What thing properly your Lawes censure , and determine to be wast . 3. What punishment by your lawes is to be inflicted vpon these that commit wast ? You shall doe me great pleasure in vnfolding the secrecie of your knowledge hereof . And first to begin with the first , let me know of what things wast may be committed .

Codicgnost .

1. Of what things wast may be committed by the ciuill Law . Wast may be committed in suffering the walles of houses , or closes to fall Gazalup . verb . rudera . . So if there be a wood which is thick with great tymber trees , which in Latin is called Saltus , or which is but thinly set with slender trees wherin hunters may ride vp and downe , which the Latinists do call Nemus , spoile or hauock made in such woods may be accompted wast C. de fun . pa. et Salluen . li. 11. . 2. Cutting of wood in silua cadus by the ciuill Law is no wast . But to cut wood in silua caedua which is apt to be cut is no wast , and therfore it is said apt to be cut , because it groweth easilie again . Neither doth wast seeme to be committed in silua pascua , if brush-wood , small wood , or vnderwood be cut for the better pasturage of the beasts that go vpon the soyle . Likewise wast may be committed in cutting down trees which grow sparsim , here & there in the land which is demised to farme : for this is wast in the land it selfe , because Arborum non est seperatum corpus a fundo . But this word Arbor extendeth by our Law very far , for it may be affirmed of Vines , which notwithstanding by reason of the tendernes of them may seeme to obteine a middle nature betwixt a tree , and an hearbe . Likewise to iuie , though that doe rather cleaue to trees , then participate the nature of trees : And the name of Arbor doth extende to reedes , and to willowes . But the cutting of some trees , that is the lopping or pruning of them may be more auaileable for their growth , so that onelie their cutting downe , and not their cutting only shall be adiudged to be Wast . Such trees are named of vs Arbores caeduae : which may grow againe either by the same stocke , or by some other impes , which may be grafted vpon them . Such are the Cherie tree , the ashe , the medlar tree , the oake , the laurell , the alder tree , and the poplar tree ff . Arbo . furtim . caesa . l. 1. et l. vitem . et in gl . ff . de arbo . caeden . l. 1. §. arbo . . But the cutting down of such trees may well be called wast , and is punishable by our Law . And to open the sluces of the riuer Nilus is sharpelie punished C. de Nili . agge . non rumpen . l. vnica . .

Canonolog .

Our Law doth not in any of these things varie from yours .

Anglonomoph .

Of all these things , vnlesse it be reedes , iuy , & the like things which do more approch to the nature of weedes , then of trees , we hold in our Law that wast may be committed .

Nomomath .

Well , then I pray you shew what may properly be tearmed Wast by your Law Anglonomoph . and for that purpose consider well of the points of the former speech of Codicgnostes , who hath shewed promiscue , both of what things wast may be committed , and what may be said to be Wast .

Anglonomoph .

I will by your pacience seuerally conferre the parcels of his discourse with the determination of our law concerning that which may properly be said to bee waste ( for the other point will be thereby manifest , ) as he hath before pronounced by their law . Waste may bee committed in the decay or demolishment of an house : 3 The common law agreeth with the ciuil that wast may be in the decay of an house . this likewise is waste by our law ; therefore in an action of waste , 42. E. 3. the declaration was that the tenant had done wast in certain tenements demised vnto him by the predecessor of the plaintife for tearme of life , and the wast was assigned to bee in a chamber , a furnace , and a graunge : and the defendant said , that there was no chamber at the time of the lease made : but by the opinion of Cand . hee ought to haue said ( nor at any time after ) wherefore so hee did 42. E. 3. 22. . But the termor is not bound to repayre houses which were ruinous at the time of the lease made vnto him 12. H. 4. fol. 5 10. H. 7. 3. 12 H. 8. 1. 7. H. 6. 40. . And if all the house in such case do happen to fall saue onely the postes , and the termor abateth the postes , this is not waste , because waste must be assigned in a house ( or some like tenement ) so it is if a house newly edified be abated , which house was neuer couered 40. Assis . pl. 22. , ( and therefore may not properly bee said to bee a house , as I take it by the ciuill law : for a house according to the ciuill law doeth consist of foundation , wall , and couer Spi . egeli . verb . aedes & domus . . ) And 38. E. 3. waste was assigned in a graunge , which was worth but 4. s . and because it was of so small value , that none would hold it nor maintaine it , it was held to bee no waste 38. E. 3. 7. . Yet M. Fitzh . citeth a case out of 34. E. 3. that if waste be done by the warden to the value of 20. pence , this shal be adiudged waste , and the plaintife shall recouer Fitz . N.B. 60. c . . And the booke 14. H. 4. is , that if a man cutte trees , but to the value of three shillings 4. pence . This shall be adiudged waste 14. H. 4. 11. . But a wall or pale , which hath beene couered with thatch or timber , if the tenant suffer it to be discouered , this shal be said to be waste 44. E. 3. 44. 10. H. 7. 21. 22. H. 6. B. 16. H. 7. per Fin. waste . 131. . But if a house become ruinous for default of some couering , at the time of the death of the auncestor , and after the tenant suffereth the house to be more ruinous , the heire may haue an action of wast for the late ruine , which happened after the death of the auncestor 2. Mari . Br. wast . 117. . Neither is it sufficient in barre of a writ of waste of a house that the defendant hath built a new house in lieu of that which is fallen , but the defendant must say that it is as much in length , and as much in latitude as the other was , or at least hee must say , that it is as profitable : but when a house is ruinous and decayed at the time of the lease of it made , and it afterwarde falleth , and the defendant buildeth a newe , it is not necessarie that hee should make an other house of equall longitude or latitude 22. H. 6. 18. . And the necessitie of building a house ought to come in question , as if the lessee haue great need of a stable : and if no house be built vpon the land at the time of the lease , the lessee may not cutte trees to make an house 11. H. 4. 32. . But if waste bee made by the kinges enemies or by tempest , the tenant shall not therefore bee punished by a writte of Waste 43. E. 3. 6. . Yet in such case a speciall couenant will binde the tenant . And therefore it was adiudged 15. Elizab . that whereas the termor did couenant and agree pro se & executoribus , to repayre and maintaine the houses , and to finde principall timber , which is decayed by the default of him or his executors , and dyeth , and the house is burnt in defaulte of the executors , that a writte of couenaunt in this case woulde lye agaynst the executors , and that dammages shoulde bee recouered de bonis testatoris , and not condicionally , if there were none such , of their owne goodes : and yet this happened by casualtie 15. Eliz . 324. Dy . . But the reason thereof is giuen in an other place , Modus & conuentio vincunt legem 28. H. 8. 19. Dy . . And 29. Henrici octaui , the lessee of a meadowe did couenaunt and agree to keepe and maintaine the bankes in good repaire , and the saide bankes were drowned & ouerflowed by high waters or sodaine floud , yet the lessee is bounde to repayre and maintayne them because of his couenaunt , but according to the opinion of Fitzh . and Shelley , because the decay of the bankes was the acte of God , he ought to haue conuenient time to repaire them 29 H. 8. 33. Dy . 35 H. 8. 56. Dy . . Now I will shew how and in what cases the cutting of wood & trees is wast by our law . It is cleare by our law , that the tenant may cut trees for the amendment of houses , and the reparation of them , 5 The tenant by the common law may cut trees for the reparation of houses . but if the houses be decaied by the default of the tenant , the cutting of trees to amend them is waste 44. E. 3. 21. & 44. 11. H. 4. 32. : but the lessee may not in any sort cut apple trees for the amendment of houses Temps E. 1. waste 122. . And 7. H. 6. it is said , that he shal not meddle with great timber-woode without the assent of his lessor : otherwise it is of seasonable wood which is but of the age of ten yeres or therabout 7. H. 6. 38. . But the cutting of dead wood is not waste Fitzh . N.B. 59. M. : And the termor hath house-wood , hedge-wood , and firewoode belonging to his tearme of common right : and he may cut wood for that purpose 21. H. 6. 50. . But if hee cutte wood to burne where there is dead wood sufficient this is waste 20. E. 3. waste . 32. . And it is not waste to cut seasonable wood which hath vsed to be cut euerie twentie yeares , 6 The common law agreeth with the ciuill in the cutting of Silua cadua . or within that time 7. H. 6. 40. 11 H. 6. 1. . And the cutting of thornes is no wast because they are not fit for timber 46. E. 3. 17. . Neither is the cutting of willowes waste , vnlesse they lie about the site of the mannor 40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1. . And the termor may cutte vnder-woode growing vnder the great trees , and the high wood , but if there bee no high wood , or great trees there , he can not cut at all 40. E. 3. 25. 10. H. 7. 2. . And whereas Codicgnost . hath said , 7 The common law agreeth with the ciuill in tollerating the lopping of trees , which may be auailable for their growth . that the lopping & pruning of some trees may be more auailable for their growth , & therefore the cutting of them is not wast , because they may grow by the same stocke or by some other imps grafted vpon it : In verie truth our lawe runneth with this streame . For as I haue shewed before , to cutte seasonable wood is no waste : but if certaine sprowtes or braunches doe grow vpon the stocke , the cutting of these sprowtes or braunches or the destroying of them is wast 5. E. 4. 102. 9. H. 6. 42. 11. H. 6. 1. 22. H. 6. 14 . And plantes which can not be conueniently sold , neither beare any fruite , yet ( because of the possibilitie of the fructifying of them ) if they bee cutte downe , this is waste 20. E. 3. waste . 32. .

Nomomath .

Well , I pray you satisfie mee in this : If a man ought to keepe certaine bankes in repaire , whereby the land adioyning , and which he hath in farme , may be better kept & yeeld more profite , and hee doth not repaire these bankes , but suffereth the sea to ouerflow them , and so to make the lande a great deale worse , whether is this by your law accompted waste Anglonomophilax , according as Codicgnostes hath shewed of opening the sluces of Nilus .

Anglonomoph .

By our law if such bankes be not repaired , whereby the land demised that is adioyning is ouerflowed & made vnapt for present profite , 1 That both by the ciuill law and common law where land is empeired by the inundition of water this is wast . this in our lawe is accompted waste 20. H. 6. 1 .

Nomomath .

Well , now I pray you resolue me in this , whether is it lawfull for the termor to digge in the land demtsed , for water , mines , or treasure hid , or this shal be accompted wast , if hee doe it without the permission of the lessor .

Anglonomoph .

He that commeth to land or to any other thing by an other mans graunt or demise can not vse the lande or that which is graunted , 1 That by the common law he that commeth to land by an other mans graunt ought to vse it according to the graunt . further then the graunt or demise being reasonably construed will permit . Therefore if a man be seised of a stagne or pond stored with fish , and he sell all the fish in the pond to a straunger , the grantee may not digge the land &c. to make a trench , because he may take the fish with nettes or other engines Perk . Tit . Graunts . 23. . But if a man grant to me licence to make a trench from such a fountaine in his land to my mannor of Dale , and that I may put a conduit-pipe in the land to conuay the water to my mannor , if after the pipe bee stopped , I may dig in the land to amend the pipe 13. H. 8. 15. : because that is as it were implied in the graunt : but if a man plough vp meadowes demised vnto him , this is waste 20 H. 6. 1. 16 H. 7. wast . 131. Fitzh . N. B. 59. N. . So if the termor doe alter woode into arable , this is wast , or arable into meadow , this is wast . For this is preiudiciall to the inheritance : for the euidence concerning the lande serueth to proue an other thing 29. H. 8. 35. Dy . Maleuerers . C. . And so it is if land bee ouerflowed for default of repayring bankes 20. H. 6. 1. : but of this I haue lately spoken , and therefore will rather apply other cases to the opening and explaning the reason hereof . The digging in the lande demised for claye , 2 The digging for clay or cole in the land demised is wast by the common law . or for stone , or for coales shall bee said to bee wast 2. H. 7. 14. 22. H. 6. 21. 9. H. 6. 42. 17. E. 3. 7. for the reason abouesaid : and likewise because the soile by that meane becommeth worse 22. H. 6. 18. : & according to M. Fortescues report 20. H. 6. if the particular tenant haue not kept the water from the ground , so that it is made waste by the growing of rushes and other weedes , this hath bin adiuged to be wast , and the wordes of the writ were : 3 The suffering of the ground of the ground to become rushie or weedie , by the common law is waste . Quòd permisit aquam terram illam inundare , ita quòd deuenit iuncosa 20. H. 6. 1. per Fortesc . . But 33. E. 3. the defendant iustified in a writte of waste because hee did cutte downe an elme tree in the place where the waste was assigned , and did make a ditch in that place to water cattell , which went vpon that ground , which was necessary , because the water was very lowe , and almost dryed vp in that place , & by that meane he deduced water out of the earth , and this was adiudged a good answere 33. E. 3. Double plea . 9 .

Codicg .

That which you haue said is to reason consonant , to our law correspondent : for as to your first case of the clearing or amending of the conduit-pipes &c. Though it be in another mans ground , this in our law is not accompted iniurious l. 1. c . de quae duc . l. 11. & l. de cernimus co . 11. li. 2. . 4 That the ciuil law agreeth with the commn law in suffering and to amend conduit-pipes in another mans ground . But wee haue a rule in our lawe : that if a man ought to conuey water per subterraneos meatus , through certain chinkes or crauies of the earth in an other mans ground , he must not doe this by a leuill of stones , but with pipes of leade , because the other mans grounde is by stones more annoyed and empaired ff . de contrah . emp . l. si aquae duct . . But for the improouing of ground from worse to better , is clearely permitted by our law . As to turne waste grounde into arable , or fennish ground into firme ground , this we accompt rather a benefite to the owner of the soyle , then an iniurie c . de fund . patr . l. fi . li . 11. . So it is , if a wood become arable c . quod per noual . de verb . signif . : but to destroy any thing in an other mans ground , or to digge a pitte , and so to alter the forme and nature of the soyle , and by that meane to make it worse is accounted of vs very iniurious , but to repaire an olde building , or to make some commodious addition , is not wrongfull , but beneficiall , because Non videtur nouum opus facere , sed vetus reficere ff . de noua . l. 1. §. nouum . et §. si quis aedificium . .

Canonol .

Our lawe doth not withstand any of these assertions .

Nomomath .

Well , now I pray you proceed to speake of the penaltie which hee is to suffer by your lawes that committeth waste .

Codicgn .

1. The punishment of wast by the Ciuill Law . By our Law he that in such case will denie the wrong done shall be punished with double damages : But if he iustifie , and it be found against him , with single ff . de insti . ac . l. 1. §. 1. . But he that doth breake the sluces of Nilus , so that verie great iniurie is done , and to verie manie , he is burnt in the same place , where the fault was committed , in a fire of the height of twelue cubites , and his goodes and landes are confiscated , because it is crimen , quasi laesae Maiestatis C. de agge . Ni non rump . l. vr . ac . .

Canonol .

Our Law in this doth not gainsay you .

Anglonomoph .

2. The punishment of wast by the common Law . By an action of Wast at our Law , the plaintife if it be found for him , shall recouer treble dammages Fitzh . nat. bre. 58. H. : and execution may be had by Elegit of the landes , which the defendant had at the time of the inquest taken 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. Execut . 66. : and he shall recouer likewise the place wasted Stat Glouc . cap . 6. .

Nomomath .

I will put you to no more paines in this matter , but will discend to other things which haue not yet been discussed .

The sixt Dialogue . Of Parceners . NOmomath .

Let me know Codign . whether in your Law there be any definition set downe & established touching Parceners , as they are tearmed at the common Law , and concerning the making of Particion betwixt them , agreeable to the common Law .

Codicgn .

I would first that Anglonomoph . should shew who be Parceners at the common Law , and in what sort partition is made : otherwise I should but roue at an vncertaine marke .

Nomomath .

I pray you do so Anglonomoph . for that course is not to be disliked .

Anglonomoph .

Mast . Littleton , 1. Two sortes of Parceners : Parceners by the common Law and Parceners by custome . a learned man in our Lawes , and a great patriarch of our profession , maketh two sortes of Parceners : Parceners by the common Law , and Parceners by custome . Parceners by the common Law are when a man or woman seised of landes or tenements in fee simple , or fee taile , haue no issue but daughters , and die , and the tenements discende to the daughters , and they enter into the said landes or tenements , now they are Parceners , and how manie daughters so euer they be , they are but one heire to their auncestour . 2. Who be Parceners by the common Law . And they are called Parceners , because by the writ , which is called de Particione facienda , the Law will compell them to make particion of the land . Also if a man seised of tenements in see simple , or in fee taile , do die without issue of his bodie ingendred , and the tenements discende to his sisters , they are Parceners by our Law . So if his landes discende to his Auntes Littlet . lib . 3. c . 1. fol. 54. . And none bee called Parceners in our Law , but women , or the heires of women which come to landes and tenements by discent . For if two sisters purchase landes or tenements , thereof they be called Iointenants , and not Parceners Littlet ibidem fol. 56. . But bretherne may be Parceners by the custome , as by the custome of Gauelkind in Kent Littlet . ibid . 59. .

Codicgn .

3. Who be Parceners by the Custome . We haue an action in our Law verie like to your aboue mencioned writ of Particione facienda , and it is called actio familiae herciscundae , and it lieth for them which haue a common inheritance to bee deuided betwixt them : As when two sisters , brothers , or kinsfolkes are instituted heires , and by that meane are reputed as seuerall heires to the auncestor , or him that instituteth them ff . famil . hercis . l. 1. et 2. C. de verb . sign l. sin . . For if the Testatour pointing with his finger at three seuerall persons doe saie vnto them , quilibet vestrum haeres mihi esto , 4. That by the Ciuill Law where three heires are instituted , they are not reputed as one heire . his meaning by our Law is taken to be this , that euery one of them should be heire in parte , non in solidum , for materia subiecta the thing it selfe doth require it , because it is vnpossible by our Law , that euery one of them should haue the inheritance in solidum L. hoc artic . ff . in fi . ff . de haere . insti . . But if he doe not speake distributiue , but collectiue : as if he said , Quisquis mihi haeres erit , det Titio centum solidos : now whether there be one heire or more heires then one , yet Titius shall haue but fiue pounds , because of the collectiue word quisquis L. ab omnibus in princip . ff . de leg . 1. et l. si quis in fundi vocabul . in fi . eo . ti . . But if the Testator doe say , Quicunque primò ingressus fuerit Castrum , habebit centum solidos , and two doe enter the Castle together , they shall euery of them haue fiue poundes , because of the distributiue word quicunque , which may be verified either in one or moe doing the same act at one time , because primus est qui alium ante se non habet L. qui filium §. 1. ff . de leg . 1. . And if the Testator saie , Quilibet haeredum meorum , det Titio decem solidos , Titius shall haue as many tenne shillinges as theire be heires L. si pluribus . et ibi no . gl . ff . de leg . 2. : which prooueth that by our Law , the seuerall heires are not accompted as one heire .

Canonolog .

Our Law holdeth not the contrarie .

Nomomath .

You haue good reason for it . But I pray you resolue me Anglonomoph . are these which you call Parceners reputed in your Law as one heire to all intents .

Anglonomoph .

5. That by the common Law parceners are reputed as one heire , as to the discent of landes . Yea to all intentes in regard of the discent , though as to the making of particion it accompteth them as seuerall persons Fitzh . nat. bre. 197. A. . For a Nuper obijt ought to be brought by that Coparcener , who is deforced from the tenements against all the other Coparceners , 6. Parceners in regard of the particion are accompted as seuerall persons . which do deforce her , although some of them haue nothing in the tenancie 32. E. 3. Nuper obijt 7. 9. Ass. pla . 8. : For seuerall tenancie , or nontenure is no plea in a Nuper obijt , because of the priuitie of bloud 7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8. .

Nomomath .

Whether shall a writ de Particione facienda be vsed against Iointenants or tenants in common , as well as against Parceners , or some other remedie , shall be vsed against them .

Anglonomoph .

1. The statute of 31. H. 8. giueth a writ de Particione facienda as well to Iointenants and tenants in common , as to parceners . Before the Statute of 31. H. 8. Iointenants and Tenants in common were not compelable by writ to make particion of landes and tenements which they vndiuidedly held . But by that Statute a writ de Particione facienda may be sued against them as against Parceners 31. H. 8. c . 1. Rastall Particion 3. . But by the common Law Iointenants may make particion by mutuall assent without deede 47. E. 3. 22. 19. Ass pla . 1. . And by such particion the iointure is seuered 30. Ass. pla . 8. .

Codicgn .

2. The three seueral actions against Parceners , Iointenants , and tenants in common at the Ciuill Law . By our Law seuerall remedies are vsed against these which be both of one bloud or one familie , which you haue tearmed Parceners : as an action de familia herciscunda : and an other maner of action against such as come to the land by ioint title , though not by one discent , which you haue tearmed Iointenants , namely an action which is called of vs Actio pro socio : and an other against these which come not in by ioint title , but yet claime vnder these which came to the land by ioint title , as by your Law are Tenants in common , against whom , or betwixt whom , for the effecting of particion , an action lieth at our Law which we call Actionem de communi diuidundo .

Canonolog .

To this our Law is not contradictorie .

Nomomath .

Let me now vnderstand in what sort particion of landes or tenements and other thinges is made by your Lawes .

Anglonomoph .

Of landes and tenements the particion by our Law is to haue a seuerall part or portion , as to haue a third part , 1. Diuers kinds of partion at the common Law . 1. A particion to haue a third part , or a fowerth part . if there be three Coparceners , or a fowerth part , if there be fower &c. And if there be two Coparceners , 2. A particion by way of release . and one of them releaseth to the other with warrantie : this hath been helde to be a good particion in Law 44. E. 3. Counterplee de vouch . 22. 34. E. 1. Partition 17. . And particion of landes is sometime made by the graunt of a thing de nouo : 3. Particion by the graunt of a thing de nouo . as if an hundred shillinges of rent be graunted by one of the Coparceners to two of her sisters for equalitie of particion 2 H. 6. 14. . So when land entailed is deuided betwixt Parceners , 4. Particion by way of reseruation . and a rent is reserued vpon the particion for equalitie , the rent reserued shall be in taile , and of the same condition whereof the land was at the time of the particion made 2. H. 7 5. 15. H. 7. 14. . But a particion of a Mill is by taking the third part , 5. Particion by taking the 3. part , or the 4. part of the profites . or the fowerth part of the profites , as the case requireth 11. E. 3. Briefe 478. . And 45. Ed. 3. it was ruled , that Milles , Douecots , and the like , could not be actuallie , locallie , and as I may saie artuatim , as it were by iointes diuided . But if a woman ought to bee endowed of the third part of such thinges , the thrid part of the profites ought to bee assigned vnto her 45. E. 3. Dower 50. . Yet 47. Edw . 3. the case was , that two Iointenants were of a Mill , and they agreed to repaire the Mill , the one of them of the one side , and the other on the other side in perpetuum , and after the Mill was leased to farme , and they tooke the rent seuerallie according to the moities , and the Inquest said , that their meaning was , that the particion should bee good against them , and their heires 47. E. 3. lib . Ass. pla . 22. . But Quaere , whether the Shirife by writ de Particione facienda may make any such particion . Likewise particion may be of a reuersion , that one of the parceners shall haue the reuersion of three acres , and the other the reuersion of other three acres , and it may be without deede Fitzh . nat. bre. 62. D. 28. H. 6. 2. . And so particion may bee made of a waie 21. E. 3. 2. . And also of a seigniourie 27. E. 3. 29. . But of an aduowson the particion is to present by tourne 38. H. 6. 9. 42. Eliz . 87. Corbets case per Iust . Walmesley Co. .

Canonolog .

Our Law agreeth fully with yours in this , 6 A difference in the Ciuill law where a thing that hath partes coharentes is diuided , and where it hath partes distantes . for either a thing hath partes cohaerentes , as a house , and this may be diuided by a seuerall occupation : Or els it hath partes distantes , as a load of woode , or a flocke of sheepe , and this may be membratim or corporally seuered and diuided Ber. de exces . prae lab . lib . 6. .

Codicgn .

The verie same difference doth our Law reteine L. non ampli . §. cum bonorum . ff . de legat . 1. .

Nomomath .

Well , I will sticke no longer in this plaine title . Now prepare your selfes for the sifting of more intricate pointes , then haue heretofore been handled by yee sithence the beginning of this second conference .

The seuenth Dialogue . Of Conditions . NOmomath .

In the treating of Conditions , I will not trouble you with any exquisite definition of Conditions , because I doe imagine that I shall draw that out of the resolution of the cases , which I shall propose vnto you . My first question therefore is this : Whether doth the word ( Si ) alwaies import and signifie , a condition in matter of contract and limitation of estate .

Codicgnost .

1. Si doth not alwaies signifie a condition in the ciuill law .

2 Sometime it signifieth an vncertain cause 3 Sometime it signifieth a certaine cause . 4 Sometime an vncertaine euent .

5 Sometime a condition .

It doth not alwaies signifie a condition , but sometime it signifieth an vncertain cause , as I promise to Titius ten pound , if he do accomplish my busines . Sometime it signifieth a certaine cause , as if the iudge do giue iudgement for me : sometime it signifieth an vncertain euent conditional , as I promise thee twentie pound if I. S. be in Westminster hall such a day , and sometime it signifieth a condition or a conditionall disposition , which alwaies suspendeth the premisses or matter precedent l. itaqueff . si cert . pet . l. de monstra . ff . de condi . & demonstr . § fi . Insti . de verb . oblig . : as if I promise vnto you Stichus my bondseruant , & if I do not deliuer him vnto you within such a day , then I will giue vnto you twentie pound nomine paenae , here is both a condition , & likewise conuentio paenalis , which is presently to take effect vpon the breach of the condition l. Stipulatus . §. 1. ff . de verb . obli . . So if the testator say , if my bondwoman shall bring forth three children at three labors , let thē be free : now if the woman bring forth foure children at two labours , they shall all bee free : for though there bee foure children , yet there is but a double labour , and in the eye of law bringing forth but two children : for all that bee brought forth at one birth , are but as one child in regard of their natiuitie , as our law intendeth , because the law respecteth that quod plerunquefit , and for the most part one child is borne at a birth , and not two or more l. Aretusa . ff . de stat . homi . l. cum mater . § fi . ff . de fidei commis . . And in this case , benigna interpretatio facienda est in fauorem libertatis . And because it can not bee well vnderstood whether of the two children shall be free , therefore both by construction of law shall be free .

Nomomath .

This seemeth straunge to mee , that two children should bee one childe , two procreations one birth , vnlesse it bee because the parents were one person in law , when they begot them . And surely Quintilian maketh two distinct procreations in your case , & therfore he saith . Quid refert an ex eisdem prima illa duorum corporum antmorumque compago seminibus oriatur ? sibi quisque firmatur , sibi quisque componitur , & duo pluresue fratres nascuntur fato singulorum Quintil . in Gemin . languent . : And Esau and Iacob famous twinnes were borne so continuatly ( as I may say ) together , that the later did holde the fate of the former Genes . 25. . Yet God forbid that wee should accompt these two one . Saint Augustine boldly and wittily distinguisheth them thus : Vnus duxit mercenariam seruitutem , alius non seruirit : vnus a matre diligebatur , alius non diligebatur : vnus honorem , qui magnus apudeos habebatur , amisit , aliter ademptus est . Quid de vxoribus , quid de filiijs , quid de rebus , quanta diuersitas August . lib . 5. de ciuitat . De . c . 4. ? And therefore surely in this point I take your law to be contrarie to the course of nature .

Codicgnost .

It is not in the supposall of one procreation of two twinnes , eyther contrarie to nature , or arte : not contrarie to nature , because as there is one conception of two twinnes , so there is one puerpercie , though it bee finished at diuers times , for the labour still continueth , not contrarie to arte : for the Astronomers hold , that twinnes are alwaies borne vnder one Horoscope , vnder the same constellation , and the same situation of the starres : for the Horoscope in Astronomy , if it be formally taken is nothing els but horae inspectio , if it bee materially taken , it is that part of the Zodiacke which ascendeth vpon our hemisphere : for the Zodiacke circle is alwayes rowled about , and some portion of it doeth alwayes arise to vs , some doth alway decline : some is in one region of the heauens , some in another , and children being borne vnder one situation of the stars , as they be like in the qualities both of the bodie and minde : so in the producing them to light , there is but one labour : in their cressence in the wombe , there is but one operation of nature .

Nomomath .

You haue rather aunswered mee , then satisfied mee : for I am perswaded , that I shall neuer bee of your opinion whilest I liue , neyther will I applaude to your lawe in this . But Anglonomophilax , I hinder you from examining the parcels of Codicgnost . his precedent speech of conditions .

Anglonomoph .

I will not meddle with Codicgnost . his midwiferie in handling matters of law , but will turne saile from it : as Cato disliked to prattle with women in the Senate house Liui . li . 34. . But as to the assertions of law , which he hath set downe , they shal not glance from me without touch . Whereas he hath said that this word ( si ) doth signifie an vncertaine cause in their law , so it doth likewise in ours , 6. Si doth signifie an vncertaine cause at the common law . as appeareth by Boldes case in my L. Dyers reportes which was thus . R. Bolde brought an action of debt against Molineux for 30. pound , vpon an obligation endorsed with this condition , that if it fortune Ioane Molineux to decease before the feast of S. Iohn baptist which shall be in the yeare of our Lord 1553. without issue male of her bodie by the said R. B. lawfully ingendred then liuing , that then &c. and the defendant said , that after the making of the said writing & before the said feast the aforesaid Ioane at B. in the countie of L. dyed without issue male of the bodie of the said woman by the said R. B. lawfully ingendred then liuing : and the plaintife said , that hee ought not to bee barred from his action : for he said that after the making of the said writing , & before the said feast , namely the 12. of Iune , anno &c. the said plaintife at M. in the countie of Lancaster , tooke to wife the said I. and they had issue betwixt them H. Bolde , and after & before the said feast the said I. and the said B. dyed , the said H. being the sonne of them both at the time of the death of the said I. being then full liuing , and after and before the said feast , namely the twelfth of Iune the saide H. B. at B. aforesaid dyed , and the defendant hereupon did demurre in law . And the question was whether this word ( tunc ) in the condition should be referred to the time of the death of the wife : and it seemed to Mountague and Baldwin that it should not , but that it ought to bee referred to a time certaine : for euerie tunc relateth to his quando , but they thought that it should bee referred to the feast which is certaine , and not to the death of the woman , which is vncertaine : but Shelley and Knightley thought otherwise . For in diuers cases relation shall not bee made ad proximum antecedens : as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta , this shall not bee referred to the estate taile , which doth next preceed , because it wanteth the word ( heires ) to make an estate tayle , and therefore it shall be referred to the first estate . Which later opinion if it bee lawe , then by our law ( si ) may signifie and may make other wordes to signifie an vncertaine cause of the accomplishment of a condition 28. H. 8. 14. Dy . Boldes C. . And whereas hee hath said that sometimes it signifieth a certaine cause ( as if the iudge doe giue iudgement for me : ) So likewise it signifieth a certain cause in our law , 7. Si , signifieth a certaine cause at the common law . for 8. E. 4. the case was this . An action of debt was brought vpon an obligation by the Dutchesse of Suffolke : the defendant said , that it was endorsed with this condition that if the defendant should stand to the arbiterment of the said Dutchesse touching all maner of suits &c. betwixt him & one B. that then the obligation should be void &c. And this was admitted to be good , and thereupon it may be concluded that ( si ) sometimes in our lawe importeth a cause certaine , as the Dutchesse in this case was a certaine cause of the arbiterment 8. E. 4. 1. & 9 Dutchesse de Suffolke C. . So 23. Eliz . the case was that two were bound to stand to the arbiterment of two , if they did make their awarde within two daies after the date or making of the said obligation , and the obligation bore date die Sabbati ante prandium , and the award was made the same day post prandium , and this was held to be good , because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past . 8. Si , by the common law may signifie an vncertaine euent . And as in the ciuill law , so likewise by our law ( si ) whether it be expressed or implyed may signifie an vncertaine euent : for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning , this remainder is good , though it be vpon a ( si implyed ) if I. S. dye not before the next day , and if one come to Paules the next day in the morning , and if hee which commeth thither be a person able to take by the graunt Assis . pl. 47. Perk . 13. sect . 56. . And whereas he saith , that by their law it signifieth a condition , 9. Si , signifieth a condition by the common law . or a conditionall disposition , so it doth likewise in our law , as it is well recited in my Lord Dyers reports out of Bracton : Scito quòd , vt modus est , si conditio , quia causa . And as to his conceited case of the puerperie , 4. Mari . 139. Dy . I take his reason to bee verie good , that benigna interpretatio facienda est in fauorem libertatis .

Codicgnost .

What say you now sir ?

Nomomathes .

I say that as for such a paradoxical fantasie , Non persuadebis etiamsi persuaseris . But I pray you resolue me this : If I sel to another certain land for an hundred pound , vnlesse another the next moneth following doe giue more for it by fiue pound at the least , whether doth this word ( vnlesse ) make a condition , or it is an idle clause and vneffectuall .

Codicgn .

I take it clearely to make a good condition , 1 The word ( nisi . or vnlesse ) doth sometime signifie a condition at the ciuill law . for though the sale be pure and vnconditionall , yet it is resoluble and defeasible vpon a condition contingent l. 2. §. si in diem ff . pro emp . : for the words following may qualifie and gouerne a direct graunt or deuise : as if the testator say , I deuise vnto A. a C. li. for the making of my tombe l. quib . diebus . §. fi . ff . de condi . & de mon . : or if he said , I deuise vnto him a hundred li. pro cura liberorum meorum sustinenda : or if he said , I deuise vnto him so much to endow certaine poore maydens , or to ransome certaine prisoners out of captiuitie , here there is no condition implyed , but onely a limitation or modification to what intent or purpose the deuise is l. mille . C. de epi . et cle . . So if the testator say , 2 Law is a modification or limitation of a graunt is made . I deuise to Titius C. li. which I will shall be paied vnto him out of my money which I haue in such a place , as namely in such a closet , or such a chest : if in the closet or chest there bee no money , then there is nothing due , but if there be a lesse summe , yet all the mony is due by reason of the intent l. quidam testamento ff . de leg . 1. l. Lucius . ff . de ali . & ciba . . And if the testator deuise to euerie one of his free men a seuerall & certaine yearely maintenance out of his landes in Dale , if his landes in Dale be not sufficient for these seuerall maintenances , yet they ought to be supplyed of his other landes l. Paulo Callimacho . §. fi . de leg . : because the adiection and mentioning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment , and not for the taxation or restraint of the legacie : for legatum non restringitur . But if a man deuise ten pound to his daughter vntil she mary , by this is intended a yearely paiment of x . li . l. legatum ff . de annu . lega . , because the worde ( vntill ) doeth signifie in this case a limitation . And though there ought to be a multiplication of paiments : yet there is a limitation ad tempus nubendi , that afterward the paiment shall not be due : but if a man deuise to his daughter his lands which he bought of Cornelius vntill she marie , this signifieth not a yerely legacie , because subiecta materia non patitur vt sit multiplicabile : But it onely signifieth an extinction of the legacie when the mariage is accomplished . For if a man deuise his land in Dale to A. vntill he be Shirife of London , as soone as he is Shirife of London the legacie is determined , and immediatlie reuerteth to the heire L. fi . C. de leg . . For as it is in the power of the Testatour to make the legacie begin at a certaine time , so likewise it is in his power to make it end at a certaine time .

Nomomath .

You haue put good and perspicuous diuersities betwixt a condition and a limitation . I pray you Anglonomoph . shew what your Law determineth of this difference .

Anglonomoph .

3. A difference betwixt a limitation and condition at the common Law . The verie same difference is in our Law , which by cases shall be explaned . A man graunteth to an other his manour of B. so that he paie 10. li. yearely to the lessour , during the life of the lessour : and if the said rent be behind , that then it shall be lawfull for the lessour to distraine for it in the lessees manour of S. the lessour hath a franktenement in the rent sub modo , depending vpon the will of the lessee ( and the lessour , ) and there is a limitation implied by Law , though not verbally expressed 3. E. 3. 15. Assise 172. . So if a man make a Lease to one for life , paying the first six yeares 3. quarters of corne , and if he will hold it longer a C. s . the word ( If ) in this case maketh but a limitation 15. E. 3. Execution 63. . So if a rent of 5. pound be graunted to I. as long as the grauntour , his heires or assignes shall hold the manour of W. this was adiudged to be a freehold in the grauntee , but yet with a limitation 10. Ass. pla . 8. Br. Estates 31. , ( as long as the grauntour should hold the manour of W. ) So if a man graunt a common in his land in Dale , when he putteth in his beastes , or graunteth an estouer of Wood , when he commeth to his manour of D. the grauntee hath a freehold , but qualified with certaine limitations 17. Ass. pla . 7. . So it is if the king graunt an office to I.S. donec bene & fideliter se gesserit 3. Ass. pla . 9. et . 6. . So if land be leased to one quamdiu se bene gesserit 37. H. 6. 29. . So if a man deuise his land to his eldest sonne in taile , with seuerall remainders in taile , and that the partie morgaging , incumbring , entangling , or aliening the land , shall be clearelie discharged , excluded , and dismissed touching the intaile , and the conueyance of the intaile shal be of no force vnto him , this is not a condition , but a limitation : for if it were a condition , the right heire might enter for the breach , and defeat all the meane remainders in taile , which is not consonant to the intent of the Deuisour 13. et 14. Eliz . Com̄ Newyses c . 403. . And whereas you haue said that a man by way of limitation may deuise money to be paied out of his chest or coffer , and if there be no money in the chest or coffer , 4. The common Law is more ample and large then the Ciuil law in matter of limitation . there is no money due , our Law dealeth more amplie and beneficially in like cases . For if a man graunt to me an annuitie of x . li . to receiue out of his coffers , if he haue neither coffers , nor money in thē , yet his person shal be charged with the annuitie Fitzh . Nat. bre. 152. A. 9. H. 6. 17. , because the graunt it selfe induceth a charge vpon the grauntour . Yet an annuitie may be graunted with a limitation : as if an annuity be granted to take at euery time as often as the grauntour shall come to his manour of S. or as often as the grauntee shall come to the house of the grauntour 14. E. 4. 4. . So if I graunt an annuitie of x . li . out of my land in Dale , and I haue no land in Dale , this graunt is not void , but my person shall be charged 9. H. 6. 53. per Newt . et Cot . .

Nomom .

Pause here Anglonom . What is Canonologus drowsie , or entred into some dreame ?

Canonolog .

I was neither drowsie , nor dreaming , but the eies of my mind were somewhat closed and shut , as the hares be when she watcheth for the houndes : for if I could haue taken any aduantage of the speeches of my two companions , I would not haue been so long silent . But in truth our Law in the matters of condition before handled , hath no other oracle but the Ciuil Law , if hereafter there happen any variance , I will not conceal it from you .

Nomomath .

Let me then aske you this question Codicgn . A man deuiseth to R. x . li . and if he wast or spend it , then he deuiseth vnto him x . li againe : Suppose that he do spende twentie pound , whether may he afterward demaunde 10. li. because the deuise is indefinite .

Codicgnost .

The deuise is not indefinite : 1. Rursus , or the word ( againe ) signifieth once againe by the Ciuill Law . for this word ( againe ) signifieth as much as once againe , according to the rule of our Law : Rursus verificari potest in vna vice l. fidei commiss . §. si quis ff . de leg . 3. : Otherwise it might be that the executor should be charged to the full value of all the goodes of the Testatour : For if the deuisee were an Acolastus , though the executor were by the executorship a Craesus , yet all would not serue .

Anglonomoph .

Your reason is good , but yet I would not be peremptorie in this matter , for it is not in our Law so cleere : For two Iudges were opposed against other two in thē like case . There is a Prouiso in a Lease , 2. How farre forth a word of restraint is to be extended at the common Law . that neither the lessee nor his assignes , shall not alien to any without the assent of the lessour , but onely to the wife , or the children of the lessor , and the lessee alieneth to one of the sonnes of the lessour : It was left ambiguous , whether the restraint were now determined Mar. 152. Dy . .

Nomomath .

Let this be the case . I am bound to paie you twentie pound , if your ship come from Russia , and after the ensealing and deliuerie of the bond , we make this condition , that the twentie pound which I did before owe vnto you vpon the aforesaid condition , I shall now owe vnto you absolutelie and without condition , whether in this case is the agreement of any force to defeat the condition .

Codicgn .

1. An agreement by word may defeat a condition in writing at the ciuill Law . By our Law it is of force to ouerthrow the condition : for it is a renewing of the bond ( as we tearme it ) and so the later bond shall preiudice , and swallow vp the former ff . de noua . et C. eo . ti . .

Anglonomoph .

2. The common Law is quite contrarie to the aforesaid assertion of the Ciuill Law . Our Law holdeth the contrarie , and the reason is this , because it is an inconuenience in reason , that an especialtie sealed and solempnlie deliuered , should be auoyded by the bare agreement of the parties , which is but a meere matter in facto 1. H. 7. 14. Dones case per Dauers . . Yet in some cases it is not inconuenient , that an obligation should be auoided by a matter in facto where there is a strong and peremptorie operation in Law . As if a man be bound to a feme sole , and afterward he marieth her : Or if a man be bound to a villaine , and after he purchaseth the manour to which the villeine is regardant , the mariage & the purchase may be pleaded in auoidance of the especialtie . So in an auoydance of a statute merchant it is a good plea to saie that part of the land is purchased by the reconusee . So in a writ of Annuitie , it is a good plea to saie , that he hath paied it in a foreine countie . So if a man by deede graunt a rent , if the grauntee surrender the rent with the especialtie , this is a good auoydance of the especialtie 1. H. 7. Dones case per Keble . . But where a man was bound to paie xx . nobles at a certaine day , and if he failed , that then he would loose x . li . paiable at the same day : an action of Dette was brought for the x . pound , and it was allowed 26. E. 3. 71. : for here there were two seuerall bandes , one of them consequent vppon the other , but not abolishing the other . And if a defeasance vpon a statute marchant be , that the payment of the money should be made at Bristowe , and the conusee receiued it at an other place , this is a good discharge of the statute , for now the Law hath discharged it 46. E. 3. 4. . But one matter of recorde may be auoided by an other : Therefore the case was 20. E. 3. in a writ of Accompt the defendant said that the plaintife by a deede , which he shewed forth did graunt , that if the defendant did make a reconusance vpon statute marchant such a daie at Canterburie to the plaintife , that the writ of accompt should be held as voide : This was admitted by the Court to be a good agreement to auoide the writ of annuitie , as soone as the statute is deliuered to the plaintife 20. E. 3. Accompt 79. .

Nomomath .

I would know Codicgn . what your Law doth determine of impossible conditions , whether it doth vtterlie reiect them or what force and effect it assigneth vnto them .

Codicgn .

Impossibilitie , 1. Three sortes of impossibilities at the Ciuill Law . our Law maketh three-fold : iuris , facti , et naturae . Iuris , as when there is a repugnancie in the condition , so that the Law doth wholie frustrate , and disanull the condition , or els it is directlie contrarie to the Law : 2. What impossibilitas iutu is at the Ciuill Law . As if a man should contract with a woman si prolem euitauerit , or si adulteram se praestiterit , the one of these being against the Law of nature , the other against the Law of God , both of them are by our Law made voide C. fi . de condi . appo . . And indeed there is a repugnancie betwixt the contract and the condition , mariage being a thing instituted and ordeined for the procreation of children , and the auoyding of fornication . 3. What impossibilitas facti is at the Ciuill Law . Impossibilitas facti , is when there is great difficultie in the thing that is to be done , and it is not possible to bee easilie done , howbeit it is not absolutelie impossible to be done , this impossibilitie of the condition doth frustrate the act precedent : As if I say that Stichus my villeine shall be free , if he will giue a thousand pound for his freedome , this though it be not impossible , yet it is verie difficult for a villein to performe , & because of the difficultie , the Law will imagine that I did but trifle by this forme of enfranchisement , and so Stichus shall gaine nothing by it L. cum haere . §. 1. ff . de sta . li . . So it is if a man being at Yorke bee bound to paie to an other at London x . pound before sunne-set , this though it be not impossible in it selfe , because a Pegasus or poast-horse may help the matter , yet because it can not with any facilitie be pefourmed within so short time , our Law holdeth the condition to be voide Insti . de verb . obli . §. loca . . Impossible by nature that is said to be , 4. Impossibilitas naturae by the Ciuil Law . which is repugnant to naturall reason , and contrarie to the course of nature . As if I giue a horse to one vppon condition that he shall touch heauen with one of his fingers : or that he shall extinguish fire with oyle : or that he shall build a village in the cloudes Ioan . ad reg . Nemo . li . be reg . iur . .

Nomomath .

These differences haue been well opened by Codicgnostes . Now I will request you Anglonomoph . to explane and illustrate them by cases .

Anglonomoph .

I will particularlie speake of them all : And first of Conditions against Law . 5. Which be conditions against Law by the censure of the common Law . If estates in land be made vppon conditions contrarie to Law , the estates be good , and the conditions voide : But then the estates must not begin , neither take effect by force of the condition , neither depende vpon such conditions , as to the existence of them . But if a man seised of land doe enfeoffe a straunger vppon condition , that if the feoffour doe kill I. S. one of the Queenes subiectes , it shall be lawfull for him to reenter , the estate is good , and the condition voide 4. H. 7. 4. 2. H. 4. 9. . So it is if one enfeoffe an other vpon condition , that if the feoffour doe burne the houses of I. S. it shall bee lawfull for him to reenter Perk . Condic . 139. : for such conditions are impossible to bee good by Law . But if a lease for life be made , or a lease for yeares of land vpon condition , that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heyres foreuer , notwithstanding that the lessee do kill I. S. within the day , yet his estate is not enlarged , because the condition was against law & the estate should haue beene enlarged by the performance of the condition , but notwithstanding such condition , yet the lease is good , because that did not beginne by the condition . But if an obligation be endorsed with a condition directly contrarie to law , both the obligation , & the condition be void 8. E. 4. 13. 2. E. 4. 3. . And if a man be bound that he shall keepe the obligee without damages , and doe not shew wherein such condition is voide , because hee may suffer damages for committing treason , murder , or other felonie which thinges are against law , and it is also against law , to saue him without damages for such thinges , so that the condition is void , but the obligation is not void , because such things are not expressely rehearsed within the condition , so that the condition is not directly contrarie to law 9. H. 4. Conditions 6. . And conditions which are repugnant in themselues are voide in law : as if a feoffement or gift in tayle be made , that the feoffee or donee may not take the profits : or vpon condition , that they shall make no waste : or vpon condition that the wife of the feoffee &c. shal not be endowed , or if a lease for life be made vpon condition that the lessee shall doe no fealtie , these estates be good , and the conditions voide : or if an annuitie be granted , prouiso that it shal not charge the person of the grauntor , the graunt is good the condition is voide 21. H. 30. 20. E. 4. 8. . But if a man seised of land in see lease the said land for yeares by indenture rendring rent , prouiso that the lessor shall not distrein for the rent , this is a good prouiso because the lessor may haue an action of dette 5. H. 7. 7. . but land or rent may be giuen to a man in taile so that he may alien to the profits of his issue , and this is a good condition : for it is agreeable to law and the donor may as wel giue conditionally as simpliciter in the taile 46. E. 3. 4. G. garrantie 18. . And 7. H. 6. it was held by all the Iustices in the eschequer chamber beside Iune , that if a man make a feoffement with warrantie , prouiso that the feoffee shall not vouch him and his heires , and that if he doe , the warrantie shall be voide , this is a good prouiso . But if the prouiso had beene that he should neyther vouche nor rebutte , the prouiso had beene void : for that had cut off all the force of the warrantie 7. H. 6. 44. . And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit , prouiso quòd scriptum non extendat ad onerandum vn des grauntors , this prouiso was taken to be void , because it restreyneth all the effect of the graunt in regarde of him , and if land bee giuen in taile the remainder in fee , vpon condition that if the donee , or his heires do alien in fee , that the donor or his heires may enter , the opinion of the court was that this was a good condition : for a man may make a condition in the negatiue of any thing which is prohibited by the law , as if he make a feoffement , prouiso that the feoffee shall not not committe felonie , or that hee shall alien within age , or in mortmayne : and a man may enfeoffe A. and his wife vpon condition , that they shall enfeoffe none other , for that were a discontinuance : otherwise it is that they shall not leuie a fine , for that is contrarie to their estate 10. H. 7. 8. . So if a man make two executors , prouiso that the one of them shall not administer , this is a void prouiso , because it restrayneth all the authoritie giuen in the premises as to him , and the intent which agreeth not with lawe is to no purpose 19. H. 8. 4. Dy . p Brud . & Englef . . And it hath beene agreede , that if a man doe limitte an vse in taile with a prouiso , that if cesty que vse doe such an acte , his estate shall cease during his naturall life , that this prouiso is repugnant , and against lawe , for the estate can not be determined in part . And Iustice Walmsley sayd , that when an estate is giuen to one , it may bee defeated wholly by condition or limitation , but it cannot bee determined in parte to one , and giuen in parte to another : for that is repugnant to the rules of law , as if a man make a lease for life vpon condition that if the lessee pay not twentie pound , that another shal haue part of the land , this future limitation is voide 41. Eliza . Corbets case 86. b . Com̄ . . 6 What conditions impossible in fact are at the common law . And as to conditions impossible in facte , such conditions if they go to the defeasans of an estate , the estate notwithstanding remaineth good : but estates cannot bee enlarged by such a condition impossible : and if an obligation bee endorsed with a condition impossible , the obligation is good , and the condition is voide . Therefore if a man seised of land doe enfeoffe a straunger vpon condition that if the feoffor go on foote from London to Stamford in a day , that then it shall bee lawfull for him and his heires to reenter , the condition is voide , quia impossibile , the estate good 14. H. 8. 32. : but if A. bee bound to B. that C. shall appeare in the common place Octab . Trin . in an action of debt brought by the said B. against C. retournable at the same day , and C. appeareth the same day , and his appearance is not recorded , now the obligation is forfeited . But if in this case C. had dyed before the day of the returne the obligation had beene saued , because the condition became impossible by the acte of God 9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19. .

Nomomath

Now I pray you shew vnto me whether conditions are to bee expounded strictly and according to the rigorous sence of the wordes are according to equitie and the exigence of the case , so that the circumstances of a mans speech or actions , shal haue the regiment of conditions .

Codicgn .

1. Conditions in the ciuill law are taken according to equitie . Conditions are in our lawe taken according to equitie . For if I graunt to one an annuitie often pound yearely , quamdiu res meas gesserit , the law maketh this sence of these wordes that he shall haue ten pound yearely , si res meas gesserit together with a limitation l. pater §. fi . ff . de condi . & demon . . So if I buy of one the fishes which are taken by him , though he haue not alreadie taken any fishes , yet the wordes doe imply a condition , that that the buyer shall haue them if any bee taken . So if I say , Acceptis centum solidis a Titio instituo eum haeredem , it is not meant that in regard of fiue pounde receiued of Titius I doe make him my heire or executor , but the words are conditionally meant : if the testator doe receiue 5. li. of Titius &c l. a testatore ff . de condi . & demon . . So if I deuise to one XX . li . pro docendo talem discipulum , this ( pro ) doth signifie a condition , because by common vsage prius docendus est discipulus quàm soluendum salarium magistro l. nec semel . ff . qu . di . le . ce . . So if I doe contract with a woman in this sort , I promise vnto you A. that you shal be my wise donec terra ponatur super oculos meos , these words are not generally to bee vnderstood , for so the partie may lay earth vpon his eyes , and slip the collar and breake promise : but they must be vnderstood according to common intendement , that she shall be his wife vntill his carkasse bee couered with earth , that is , vntill he be buried , so it is , if he should haue said , Donec oculi , & os mihi claudantur c . ex literis . 1. de spon . .

Angl.

Our law many times taketh the words of a condition strictly to preserue an estate . 2 The common law taketh conditions many times strictly . A lease was made to one vpon condition , that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the condition is not broken : for a condition which goeth to defeat an estate must be taken strictly 31. H. 8. 45. Dy . . And 28. H. 8. the case was thus : A lease for yeares was made by indenture , the lessee did couenant and grant , that if he his executors or assignes did alien , that it shold be lawful to the lessor to reenter : after he made his wife his executrix and dyed , the woman tooke an other husband which aliened . The first question was whether the wordes of the couenant abouesaid did make a condition . And if it were a condition , the 2. question was , whether there were any breach of condition in the case . Some held that there was no breach of condition , because the husband was possessed of the tearme by acte of law , & is not an assignee no more then a tenant by the curtesie is , or the land of a villaine . But Browne and Shelley held that the husband was an assignee in law , and that the land was subiect to the condition into whose hands soeuer it did come 28. H. 8. 6. Dy . . But lately in Ridgeleys case the condition was extended by equity for the safegard of the party . The case was thus : A man was bound to another in a c . l. that he shold discharge the obligee & saue him harmeles of all suits & incumbrances against I. S. and after the said I. S. sued the obligee , & proceeded vnto iudgement , wherefore the obligee brought an action of det vpon the obligation , and the defendant pleaded non damnificatus est . And Beamond Sergeant did maintayne the plea in his argument , because that hee was not damnified in the eye of law vntill the goodes or the lande , or the person of the plaintife were actually charged . For before that time he was onely chargeable , but not charged . Sergeant Harris argued to the contrarie : for he said that he was chargeable to the execution of the partie , & so not saued harmelesse , & two sorts of damages were held by Iustice Walmesley the one executorie , the other executed executorie , which a man may in future time sustayne : Executed , as if the land or the person shoulde bee in present execution . And if the disseisee make a release to the disseisor , and a straunger cancelleth the deede of release , the disseisor may haue an action of trespasse against him : and yet the disseisor doth continue possession , and is not as yet actually damnified . And Iustices saide , that the land of the party was in some sort charged , for none in such case would buy the land of the partie , but onely vnder the value , because of the iudgement executorie 33. Eliz . Ridgeleys c . . But wee haue a rule in our law , that when a condition is to bee performed to a straunger it is to bee performed most strictly : and it the condition bee performed at an other place , this is not sufficient 36. H. 6. 8. . And 21. H. 6. it is said that if a man be bound , that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s . rent for tearme of life , and he hath three feoffees , two of the feoffees cannot graunt this rent 21. H. 6. 19. . But 7. E. 4. it was affirmed in the kings bench , that if a man were bound to make one a sure sufficient and lawfull estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not , or lawfull or not , he is excused of his bond : and a like matter was in the common place the same terme , and they were of the same opinion 7. E. 4. 13. .

Nomomath .

I wold gladly be satisfied in this , when a man maketh one his heire or executor , and if hee refuse to performe any thing that is comprised in his will , then he willeth that I. S. shall bee his heire or executor , and shall performe his will , and shal seise his goods and enter into his lands post haereditatem aditam , though the heyre or executor haue intermedled with the will , and haue performed some thinges according to the intent of it : Now if the Testatour die , and the heire or executor haue perfourmed some thinges of the will , but refuseth to perfourme other some , and hath seised the goodes , and entered into the landes of the partie deceased : Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes : or shall he still reteine part of the landes , and goodes , because he hath perfourmed part of the will ?

Codicgn .

1. There may be a substitution of one heire after an other , or of one executor after an other at the Ciuill Law . I. S. or the substitute of the Testatour is now by the will and breach of the the condition become directly the heire or executor to the Testatour : And all the authoritie or interest of the fomer heire or executor is vtterlie determined , 2 The heire at the ciuill Law must s●ccedere in vniuersum ius defuncti . frustrated , and defeated Insti . de vulga . substi . §. quo casu . : for the authoritie or interest of the heire or executor by our Law may not be apporcioned , but he must succedere in vniuersum ius defuncti ff . de verb . signif . l. nihil aliud est haereditas , et l. bonor . eo . Tit . . And there is an other substitution in our Law , which we call a reciprocall substitution , and it is thus : The Testatour saith , I doe make S. and T. my sonnes within age my heires , and I substitute the one of them to the other , that is , if the one die , the other shall haue all , and the mother nothing at all Gazalup . verb . substitutio breui loqua . .

Anglonomoph .

I haue noted in your wordes Codign . two thinges , which haue no small coherence and agreement with matters of our Law . First in that by will according to your Law , an entrie may be limitted to a straunger . 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate , and shal entirely claime the possession . Which two assertions I shall seuerally prooue by cases of Law beginning with the first : 3. By Will according to the common Law an entrie may be limitted to a stranger . A man seised in fee of landes deuisable , did deuise them to one for terme of his life , and that he should be a Chapplein , and that he should chaunt for his soule all his life time , and that after his decease the tenements should remaine to the Cominaltie of a certaine village , to finde a chappleine perpetuall for the same tenements , and he died , and the deuisee entred , and held the landes sixe yeares and was no chappleine , and the heire of the deuisour outed him , and he brought an Assise : And it seemed to the Court that the limitation that he should be a chappleine was no condition , and that the heire could not enter , for then the remainder should be defeated , which may not be , because by the intent a perpetuall chappleine ought to found 29. Ass. pla . 17. : Whereby it appeareth that they in the remainder were to take aduantage in this case of the breach of the thing that was to be done , and not the heire . So in Fitz Iames his case , the clause of entrie was limitted to him in the remainder for breach of the condition by the particular tenant : for it was helde that the limitation might determine the estate , and that being determined , he in the remainder might enter 13. et 14. Elizab . Com̄ 403. Newyses case . . Also 34. E. 3. the case was , that a man had issue a sonne and a daughter , and deuised land deuisable to one for life , vpon condition , that if the sonne should disturbe the tenant for life , that the land should remaine to the daughter , and the heires of her bodie , the father dieth , the sonne disturbeth the tenant for life , who dieth , the daughter brought a Formedon , and it was allowed 34. E. 3. Formedon pla . vlt . : 4. The aduantage of entrie limitted to a stranger is in the late reports doubted of . But yet the aduantage of entrie by vertue of the limitation is not in other late reportes so cleare , but hath been greatlie doubted of : Stubes being Cestuy que vse deuised to his wife certaine land during her life , ita quòd non faceret vastum , the remainder to his yonger sonne in taile , and died , after the Statute of 27. of ioyning the possession to the vse is made , the woman dieth , the question was who should enter for the condition broken , the heire , the feoffees , or he in the remainder 3. Mar. 117. Dy . . And an other case was equally doubtfull , Wilford was bound in an Obligation without daie of payment limitted , and deuised his land to his executors vppon condition , that if they did not paie the said summe according to the obligation , that the deuise should be voide , and that then A. should haue the land to him and to his heires vppon condition that hee paied the money , Wilford died , A. died , the executors are requested to pay the money , and they would not pay it , the question of the booke left vndecided , is whether the heireof A. may enter into the land , and paie the money 3. Mar. 128. Dy . . In like maner land in Gauelkind was deuised to the eldest sonne vpon condition , that he should paie 100. li. to the wife of the deuisour , he fayled of the payment , it was questioned by Manwood , whether the yonger sonne might enter into the moitie , as by an implied limitation 15. Eliz . 317. Dy . . But touching such entries by force of some speciall limitation or condition , Mast . Frowike giueth a good rule 21. H. 7. that an estate of inheritance can not cease by vertue of a condition broken onelie , but there ought to be also an entrie : But otherwise it is of a particular estate , and the reason is , because such an estate may be determined by word as by surrender : and by the same reason it may cease by the wordes of the condition 21. H. 7.12 . per Frowike . . 5. That the entrie for the condition broken , defeateth the whole estate . Now that the whole estate of the feoffee or donee is defeated by the breach of the condition , and the entrie of the partie , may be prooued by diuerse authorities in our Law , and that there can be no fraction of the condition , 14. Elizab . all the Iustices agreed : And so was iudgement giuen in Winters case , that by the graunt of the reuersion of part of the landes , with which a condition runneth , the condition is wholie confounded , because it is a thing penall and entire , and may not be apportioned nor diuided 14. Elizab . 308. Dy . . And 33. of Henrie the eight , according to Mast . Brookes report , it was helde for Law , that if a man giue land in taile , or lease it for life , rendring rent , with a condition for default of payment to reenter : now if he lease part of the land to the donour , or lessour , or if the donour or lessour enter into part of the land , he cannot enter for rent behind after , but the condition is wholie suspended , because a condition cannot be apportioned or diuided . Therefore some scruple may with good reason be made of the case 16. Elizab . in my Lord Dyers reportes , A man leased land for yeares , vppon condition that the lessee should not alien the land to anie person without the assent of the lessour , nor any part of the land , the lessour giueth licence to alien part , and the lessee alieneth the residue without licence , it was adiudged that the lessour may enter notwithstanding the dispensation of the condition ex parte 16. Elizab . 334. Dy . . Howsoeuer 5. Edw . 6. be to the same purpose , that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour , the remainder in fee to a straunger : the one of them onelie maketh estate accordingly . And by the opinion of manie , this is good for a moitie by the dispensation of the partie , who might take aduantage of the condition by his acceptance of estate 5. Ed. 6. 69. Dy . . For 23. Elizab . the case was such : A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille , he tooke twentie one fishes , and gaue tenne to the obligee , and an action of Dette was brought vpon the obligation , and the plaintife recouered , because he did not giue vnto him the moitie of the other fishe . This was adiudged in the Kinges Bench . But now suppose that the condition doth extende onelie to some particular estates , whether shall the other estates depending bee totallie defeated by the breach of the condition ? And surelie our Law is , that the breach of the condition shall defeat no estate , but onelie that whereunto it is annexed . For the case was 3. Mar. that a man deuised land to his wife vppon condition , that shee should bring vp his eldest sonne , the remainder to the second sonne : The elder sonne entreth for the condition broken , hee shall onelie defeate the estate of the wife . And if the tenant for life , and hee in the remainder ioine in a feoffement vppon condition , that if such an acte be not done , that the tenant for life shall reenter , this doth not defeate the entire estate of the feoffee 3. Mar. 125. Dy . And if a gift of land be made in taile , the remainder to the right heires of the donee , vppon condition that if hee alien in fee , then the donour may enter , if the donour enter for the condition broken , the estate taile is onelie defeated 11. H. 7. 6. 13. H. 7. 23. 10. H. 7.11 . . So if a man lease land for life by deede indented , the remainder ouer in fee rendring a rent with clause of reentrie for non payment by the tenant for life , and to reteigne the land during his life : If hee enter for the condition broken , he shall haue the land onlie during the life of the tenant for life 29. Ass. pla . 17. .

Nomomath .

I giue yee great thankes for the vnwearied continuance of your paines , and though I bee in questioning at a non-plus : yet I see your inuention and memorie are not grauelled nor dryed vp , parched as it were with summers drought . I praie you therefore let vs still conuerse together vnder one roofe ( within my walles there is no Sinon , no Dauus , no Momus , but chast learning cabboned with frugall contentment , ) that if God doe still vouchsafe the Moone-diall of this darksome life , with the reflexe of his intellectuall illumined influence , this triple-wheeled clocke may still be kept in motion , by the diuine agilitie of his Law-fauouring spirit .

A TABLE OF THE Sections or Diuisions of the principall pointes , matters , and questions , which are handled in euerie Dialogue .

The Diuisions and principall contents of the first Dialogue of Prohibitions and Consultations .

The 1. Diuision . 1. THe originall of tithes is inquired of . 2. The councell of Constance is said to haue condemned Wicklife for holding tithes to bee pure almes .

The 2. Diuision . 1 The originall of tithes is demonstrated to be by the law of God . 2. God his deputies for the receipt of tithes are set downe . 3. The heathens which knew not God had great regard of of paying tithes . 4. Lucullus is specially commended for the paying of tithes . 5. Camillus is likewise commended for his diligence in procuring tenth to be payed . 6. The Romanes carefull in paying first fruits .

3. Diuision . 1 Whether Parsons ought to haue no more liuing then tithes . 2. It is denyed by the Canonist that they ought to haue no more liuing .

4. Diuision . 1 A lay man by the Canon-law may prescribe in paying a speciall portion in lieu of tithes . 2. The ciuill lawe agreeth thereunto . 3. By the common lawe a man may prescribe in paying a temporall recompence in lieu of tithe .

5. Diuision . 1 Two sortes of tithes are set downe by the Canonist : some feudall , some ecclesiasticall . 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe . 3. The king of Fraunce his edict touching tithes is sette downe . 4 That by the Canon law where the question of tithes is facti , and not iuris , the examination thereof may belong to a laye iudge . 5. Where the suite of tithes is betwixt clergie men though it bee meerely possessorie , yet it be longeth to an ecclesiasticall iudge by the Canon law .

6. Diuision . 1 The nature of feudall tithes is opened by the Canonist . 2 Charles Martle is accused of Church-pillage . 3. The Canonist telleth a strange tale of Charles Martle . 4. It is thought of Nomomathes to bee but a fable . 5. One of the ancient statutes of England is compared with the afore said edict of the king of Fraunce . 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spirituall iudge . 7. Where one parson may sue a spoliation against the other in the spirituall court . 8. The executors may bee sued in the spirituall court . 9. Of what trees tithes may bee demaunded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a laye chattell .

7. Diuision . 1 A precept issueth with a monition vnder payne of excommunication for the due satisfaction of tithes .

8. Diuision . 8 The degrees which the Canon law obserueth in punishing offences in the clergie . 2. Two sorts of excommunication sette downe by the Canonist . 3 The compulsorie statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudall tithes .

9. Diuision . 1 The Ordinarie ex officio may cite men to pay tythes .

10. Diuision . 1 Two sortes of heretickes : formatus , and suspectus . 2. In what cause the wife and children of heretickes shall enioy their landes . 3. Heretickes by the ciuill law not punishable by fire . 4. The Canonist poasteth the punishment of heretickes to the common law . 5. The professor of common law bandeth backe againe the punishment of heretikes to the Canon law .

11. Diuision . 1 What thinges may bee tearmed Church-land by the ciuill law . 2. Of Churchyards the spirituall Court shall hold iurisdiction by the common lawe . 3. The right of gleabe lande is triable by the common law . 4. Lands deuised not subiect to the iurisdiction of the ecclesiasticall Court 5. Suites for chattels real must be in the spirituall court .

12. Diuision . 1 That ius patronatus by the Canon law is determinable in the ecclesiasticall court : and that it passeth by the word ( ecclesia . ) 2. The diuers significations of the word ecclesia at the common lawe . 3. The interest of the Parson , patron , and Ordinarie , in the Church is shewed . 4. What thinges doe make a patron by the Canon law . 5. Ius patronatus is one of the proper obiects of the common law . 6. That an aduowson lieth in tenure .

13. Diuision . 1 Punishment pro laesione fidei concerning a temporall acte , is not to be adiudged in the ecclesiastical Court . 2. Periurie in an ecclesiasticall court punishable in an eclesiasticall court . 3. Lindwoods authoritie touching punishment pro laesione fidei in temporall matters at the ecclesiasticall law is not admitted . 4 The barrister disproueth the generall citations of Bishoppes ad Sacramenta praestanda by the common lawe . 5. Nomomath encountreth him in this point . 6. The ciuill law agreeth with the Canon in matter of oathes .

The Diuisions and principall contents of the second Dialogue of Actions vpon the Case .

1. Diuision . 1. THe reason is shewed wherefore actio iniuriarum hath so generall a name at the Ciuill law . 2. The barrister compareth an action vpon the case at the common law to D. Stephens his water .

2. Diuision . 1 An action vpon the case lieth against the keeper of a common Inne if goods bee embeasiled . 2. If a straunger lodge with me by my consent , and do embeasil goods , the Innekeeper shall not bee charged . 3. If my seruant embeasill my goodes , the Inkeeper shall not be charged . 4. By the ciuill lawe the Innekeeper is to bee charged with action if his seruants steale goods . 5. If through the default of the master of a shippe goods be stolne , the owner of the ship is to make recompence .

3. Diuision . 1 By the ciuill law it is not necessarie , that there be mutuall consideration in contractes . 2. Three sorts of contractes by the ciuill law . 3. What is a proper contract by the ciuill law . 4. What an improper contract is by the ciuill law . 5. What a most improper contract is by the ciuill law . 6. The common-law admitteth no contracts , but such as be proper .

4. Diuision . 1 That no fare ought to bee payed for them that die in a ship , if the master of the ship did assume to bring them safe to shoare . 2. If a child be borne in seafaring , nothing is to bee payed for that childe . 3. The barrister putteth a case of carying a horse safe and sound ouer Humber . 4. The Cannon law agreeth with the ciuill in cases of improper contractes .

5. Diuision 1 That by the common law want of skill is to be punished by an action vpon the case , if there be an assumpsit eyther implicatiue or expressed . 2. That by the ciuill law want of skill onely is punishable . 3. By the Canon law crassa & supina ignorantia non excusat .

6. Diuision . 1 Circumuention dolo malo punishable by the ciuill law . 2. A difference at the ciuill law betwixt dolus malus and dolus bonus . 3. The same difference the Canon law obserueth . 4. Dolus malus punishable at the common law by an action vpon the case , or a writ of deceit .

7. Diuision . 1 Contemptuous speeches are not punishable by the ciuill law . 2. Opprobrious speeches which proceede of malice are punished . 3 It is obiected that the Grecians did tollerate sarcasmicall speeches against wicked men . 4. Aristophanes is condemned for his bitter detractions . 5. The deuisors & publishers of libels punishable by the ciuill law . 6. The cannon law is seuere against such . 7. Reprochfull speeches punishable at the common lawe by an action vpon the case .

The Diuisions and principall contents of the third Dialogue of Debtes .

1 DEbt may grow by writing , or especialtie . 2. An obligation may be by deed indented at the ciuill law . 3. What an instrumentum garrantigiae , is at the ciuill law . 4. Three sorts of bonds by the ciuill law . 5. Debt may grow by way of contract . 6. The canon law agreeth with the ciuill in matters of bonds , & debts . 7. Debts may grow by contract by the common law . 8. An action of debt lyeth at the common lawe for the loane of money . 9. An action of debt lyeth at the common law for a meere duetie . 10. An obligation made after a contract dissolueth the contract by the common law . 11. A man may bee bound by deed indented by the common law . 12. A statute-bond is resembled to an instrument of warrantie at the ciuill law . 13. A deed razed is not good at the common law . 14 The common law agreeeth in substance with the ciuill law in the three sortes of bondes . 15. The common law dissenteth from the ciuil law in not making the redeliuerie of a bond an acquittance .

2. Diuision . 1 That by the ciuill law the executor succeedeth in vniuersum ius defuncti . 2. Insinuation of a will necessarie by the ciuill law . 3. By the ciuill law the executor or administrator ought to make an inuentorie of the goods of the partie deceased . 4. The power of the executor dependeth wholly vpon the will of the testator by the Common lawe . 5. According to the common lawe a deuise is of no force vntill the death of the deuisor . 6. The common law agreeth with the ciuil in the insinuation of willes . 7. That an action of debt wil lie against the ordinarie . 8. The common law agreeth with the ciuill in administring goodes comprised in the Inuentorie according to the testament . 9. What may properly bee said to bee assets in the hands of the executors .

3. Diuision . 1 The rigorous lawe of the Romanes in their execution for det . 2. The execution of the Romaines greatly to bee reprooued , because it did depriue men of buriall . 3. That the rigorous Law of execution for dette was afterward abrogated by the Romanes . 4. That by the Ciuill Law execution lieth for dette vpon the goods of the partie , and how far forth the word ( goodes ) extendeth . 5. A fower-fold execution for dette at the common Law . 6. The execution of goodes by Fieri facias is opened . 7. Execution by Elegit is opened . 8. Execution vpon statute merchant is opened . 9. Execution by Capias ad satisfaciendum is shewed .

The diuisions and principall contents of the fourth Dialogue , of Accomptes .

1. Diuision . 1. IN what case a man is accomptable at the Ciuill Law per actionem aestimatoriam . 2. The difference of a generall and a speciall Bailie at the common Law . 3. What things belong to the charge of the Bailie of a Mannour . 4 That by the common Law if the Bailie be preiudicial to his Master , he is to make recompence .

2. Diuision . 1 By the Ciuill Law the Bailie is discharged , if the Master intermeddle . 2. That by the common law as well as by the Ciuill , he that is put in speciall trust to procure the profit of an other , is accomptable .

3. Diuision . 1 Accompt ought to be made to the Executors by the Ciuill Law . 2. The same is warranted by the common Law . 3. That a writ of Accompt by the Canon Law , will not lie against executors , vnlesse it be in some speciall cases .

4. Diuision . 1 What authoritie may be assigned to a bailie by the ciuill Law . 2. The difference of an authoritie , a charge , and commaunde by the ciuill Law . 3. The Canon Law is against the difference : So likewise is the common Law .

5. Diuision . 1 The difference betwixt a Bailie , a Sollicitor , an Attourney and a Deputie , is shewed out of the ciuill Law . 2. The difference holdeth not in the Canon Law . 3. The common Law according to the aforesaid difference more agreeth with the ciuill , then with the Canon Law . 4. That by the ciuill Law , contrary to the common law , there is no manner of interest in a Deputie .

6. Diuision . 1 That the Bailie or Attourney may not take halfe the land , for the purchasing or compassing of the other halfe . 2. That the like matter is forbidden by the Canon Law . 3. The common Law agreeth with them .

7. Diuision . 1 Two sortes of Accomptants by the Ciuill Law . 2. Likewise by the Canon Law . 3. And also by the common Law .

The diuisions and principall contents of the fifth Dialogue , of Wast done in a mans ground .

1. Diuision . 1. OF what thinges Wast may be committed by the Ciuill Law . 2. Cutting of Wood in Sylua caedua by the ciuill Law is no Wast . 3. The common Law agreeth with the ciuill , that Wast may be in the decaie of an house . 4. A speciall couenant will binde the partie to repaire houses and walles battered downe by violence vnresistable , by the common Law . 5. The tenant by the common Law , may cut Trees for the reparation of houses . 6. The common Law agreeth with the Ciuill in the cutting of silua caedua . 7. The common Law agreeth with the Ciuill in tollerating the lopping of Trees , which may be auaileable for their groweth .

2. Diuision . 1 That both by the Ciuill and common Law , where land is empeired by the inundation of water , this is wast .

3. Diuision . 1 That by the common Law , he that commeth to land by an other mans graunt , ought to vse it according to the graunt . 2. The digging for coale or claie in the land demised is Wast by the common Law . 3. The suffering of the ground to become rushie , or weedie , by the common Law is Wast . 4. That the Ciuill Law agreeth with the common Law , in suffering one to amend conduit-pypes in an other mans ground .

3. Diuision . 1 The punishment of Wast by the Ciuill Law . 2. The punishment of Wast by the common law .

The diuisions and principall contents of the sixth Dialogue , of Parceners .

1. Diuision . 1. TWo sortes of Parceners : Parceners by the common Law , and Parceners by Custome . 2. Who be Parceners by the common Law . 3. Who be Parceners by the Custome . 4. That by the ciuill Law where 3. heires are instituted , they are not reputed as one heire . 5. That by the common Law Parceners are reputed as one heire , as to the discent of the land . 6. Parceners in regard of the particion are accepted as seuerall persons .

2. Diuision . 1 The Statute of 31. H. 8. giueth a writ de Partitione facienda , as well to Iomtenants , and Tenants in common , as to parceners . 2. The three seuerall actions against Parceners , Iointenants , and Tenants in common by the Ciuill Law .

3. Diuision . 1 Diuerse kindes of Particion at the common Law . First : A particion to haue a third part , or a 4. part . 2. A particion by way of release . 3. Particion by the graunt of a thing de nouo . 4. Particion by way of reseruation . 5. Particion by taking the third part , or the fourth part of the profites . 6. A difference in the Ciuill Law , where a thing that hath partes cohaerentes is diuided , and where a thing that hath partes distantes .

The diuisions and principall contents of the seauenth Dialogue , of Conditions .

1. Diuision . 1. ( SI ) doth not alwaie signifie a condition in the Ciuill Law . 2. Sometime it signifieth an vncertaine cause . 3. Sometime it signifieth a certaine cause . 4. Sometime an vncertaine euent . 5. Sometime a condition . 6. ( Si ) doth signifieth an vncertaine cause at the common Law . 7. ( Si ) signifieth a certain cause at the common Law . 8. Likewise an vncertaine euent by the common Law . 9. Likewise a condition .

2. Diuision . 1 The word ( Nisi , ) or vnlesse , doth sometimes signifie a condition at the Ciuill Law . 2. How a modification or limitation of a graunt is made . 3. A difference betwixt a limitation , and a condition at the common Law . 4. The common Law is more ample and large-handed then the Ciuill Law in matters of limitation .

3. Diuision . 1 ( Rursus , ) or the word ( againe ) signifieth once againe by the Ciuill Law . 2. How farre forth a word of restraint is to be extended by the common Law .

4. Diuision . 1 An agreement by word may defeat a matter in writing by the ciuill Law . 2. The common Law is quite contrarie to the aforesaid assertion of the uill Law .

5. Diuision . 1 Three sortes of impossibilities at the Ciuill Law . 2. What impossibilitas iuris is at the Ciuill Law . 3. What impossibilit as facti is at the Ciuill Law . 4. Impossibilitas naturae by the Ciuill Law . 5. Which be conditions against Law by the censure of the Canon Law . 6. What conditions impossible in fact are at the common Law .

6. Diuision . 1 Conditions by the ciuill law are taken according to equitie . 2. The common lawe taketh conditions many times strictly .

7. Diuision . 7 There may bee a substitution conditionall of one heire after another , or one executor after an other at the ciuill law . 2. The heire at the ciuill law must succedere in vniuersum ius de functi . 3. By will according to the common law an entre may be limited to a straunger . 4. The aduantage of entry limited to a stranger , is in the late reports doubted of . 5. That the entry for the condition broken defeateth the whole estate .

Errata .

Faultes . Page . Corrections . nations fol. 2. a. matrons . ( There want these words , fol. 4. a. There bee two sorts of tithes ecclesiasticall and feudall . ) stande fol. 6 . b . sue . ( There want these wordes , fol. 10. a. ( or Darius ) linea 22. Tertorike 17. b . Teutonike . harde 38. a. pore . fate 59. b . foote . puerpercie 60. a. puerperie . lande 69. b . Lord .

FINIS .

THE PANDECTES OF the law of Nations : CONTAYNING seuerall discourses of the questions , points , and matters of Law , wherein the Nations of the world doe consent and accord .

Giuing great light to the vnderstanding and opening of the principall obiects , questions , rules , and cases of the Ciuill Law , and Common law of this Realme of England .

Compiled by WILLIAM FVLBECKE .

Opinionum commenta delet dies : Nationum iudicia confirmat .

LONDON Imprinted by Thomas Wight . 1602.

To the curteous Reader .

CVrteous Reader , when Sulpitius returning out of Asia , sailed from Aegina to Megara , he began to cast his eye , and bend his contemplation to the regions round about him : behind him was Aegina , before him Megara , on the right hand Piraeus , on the left hand Corinth , which had bene in ancient time verie flourishing Cities , but were now ruinated , prostrated , and buried in dust : that wise Romane whose eye did alwaies ayme at some conuenient marke , and whose mind made perfect vse of her selected obiect , when he saw these carkasses of townes , considered his owne estate , which was far more brittle . I likewise wandring in my thoughts through the paradise of learning , amongst many delightfull apparitions espied foure excellent lawes : the first was the canon-law , to which for the grauity I bowed : the second the Ciuil , which for the wisedom I admired : the third the Common law , to which I did my homage : the fourth the law of Nations , which I submissiuely reuerenced , yet the hew and state of her seemed to bee much chaunged , and the iniquitie of crabbed times had set the print of her metamorphosis vppon her : Her other three sisters did condole with her , and deplore the iniurie of the times which did cause her crasines . I perceiuing this , waied mine owne frailtie , which in one and this very spring tide haue in my selfe knowne the force of seasons , and to the glorie of God acknowledged it : I had no meanes of comfort wherewith to refresh this drooping Ladie , but onely with a plaine English mantle to attire her , and recommend her vnto thee . She will report many things vnto thee of the renowmed Assyrians , the valiant Persians , the spirit-guided Hebrewes , the prudent Grecians , the admirable Romanes , the noble harted Carthaginians , the victorious Macedonians , the deliberatiue Turkes , the politike Italians , the chiualrous French , the most puissant & inuictis Romano Marte Britannis , Tibul . 4. Elegi . 1. she will manifest vnto thee their iudgements , their censures , their aduises , and practises : Et quae mox imitere scias : nec desinet vnquam Tecum Graia loqui , tecum Romana vetustas : Antiquos audito duces : assuesse futurae Militiae : Latium retrò te confer in aeuum . Claudi . de quart . Consulat . Honor .

I commit this booke gentle reader to thy curtesie : it is the first to my knowledge that hath bin written of this matter : if my paines be not correspondent to the dignitie of the subiect , the pardon lyeth in the beneficence of thy curtesie : Euerie one cannot be a Scipio , or a Laelius , to ouertake euerie thing which they vndertake : euerie one cannot say as one of them said : Sapientis non est dicere , non putaram . Appelles could but only describe the head and face of Venus : Achilles killed many Troianes , could not surprise their citie : and Virgill before he commeth to the death and tombe of Aeneas , fayleth , and slippeth into the description of the death and tombe of a Gnat . Perfection is a rare birde , which flieth from many , that with sweating and breathing follow it . Yet some handle that , which they can not gripe , and their endeuour is not disliked . Some make a bolde attempt , and fayle of the victorie , whose audacitie is accompted a vertue : Some in not despairing of that they purposed , haue been thanked for their hope . For mine owne part I craue no thankes , but good woordes , and good will , and thy fauourable acceptance ( friendly Reader ) which being an effectuall benefite may perfit all imperfections . Farewell in the Lord .

March 30. Anno Domini 1602. Thine in all kind respect WILLIAM FVLBECK .

A Table of the contents of the Chapters of this booke . Chap. 1. OF the differences of Times and seasons by the Law of Nations , fol. 1 Chap. 2. That by the Law of Nations , Emperors , Kinges , and absolute Monarches , haue full power and authoritie to seise the landes and goodes of their subiectes , condemned for heinous offences . fol. 9 Chap. 3. That the worthines of bloude hath been principally respected of all Nations . fo . 14 Chap. 4. That in making Title by prescription , and continuance of time immemoriall , all Nations haue consented . fol. 19 Chap. 5. That by the consent of all Nations , consent principally maketh a lawfull mariage . fol. 22 Chap. 6. That by the practise of all Nations Democracie hath been bette down , and Monarchie established . fol. 28 Chap. 7. Of the Law and Iustice of Armes , of Leagues , of Embassages , & denouncing of warre , of Truce , of Safeconduct , Captiues , Hostages , Stratagems , and Conquestes , according to the Law of Nations . fol. 33 Chap. 8. That in the Lawes & Constitutions touching Cities , corporations , liberties , franchises , and immunities , and the good gouernment and administration of them , all Nations haue agreed . fol. 52 Chap. 9. That the distinguishing of demesnes , and the difference of the degrees and callings of men , is according to the Law of Nations . fol. 60 Chap. 10. That in the Law of Tributes , Subsidies , and Prerogatiues roiall , all Nations haue consented . fol. 68 Chap. 11. That all Nations haue both secretelie , and by the course of their ouert actions acknowledged and yeelded to the Truth of the Lawes and commandements of the second Table of the Decalogue . fol. 75 Chap. 12. That the rules of warre and Law of Nations are not to be obserued , and kept with Pyrates , Rebels , Robbers , Traytors , Reuoltes , and Vsurpers . fol. 81 Chap. 13. That by the Law and practise of Nations , warre is not to be mainteined against Infidels onely , because they are Infidels : And that Princes in their Realmes may inflict punishment for straunge worships . fol. 85.

The first Chapter . Of the differences of times and seasons by the Law of Nations .

AL Nations in putting difference betwixt times and seasons haue rather followed a populer and common obseruation , then the precise rules and principles of Astronomy , accompting it more conuenient and requisite , that sithence all contracts and matters of entercourse doe fall within the listes and precincts of time , that therefore the moments and measures of time should be publikely and familiarly knowne to populer conceit : In setting downe the definition of Time , they agree in the substance and matter it selfe , though in wordes and tearmes they be somewhat dissonant . Aristotle a great Philosopher amongst the Graecians defineth Time to be the measure of motion , according to prioritie and posterioritie , a short and subtill definition , but yet true & sound . Varro as great and famous amongst the Romanes defineth it to be interuallum mundi & motus , the space of the world and motion , a briefe definition and verie nimble , if it be nimbly vnderstood : for by the world he meaneth the course of time , by motion the course of thinges . Others , as the Egyptians haue defined it a dimension perceyued by the conuersion of the heauens . Plato , who of these matters had in his trauayle conference with Arabians , Egyptians , and Chaldeans , defineth it to be a moueable and chaungeable representation of Eternitie ; Plat . in Tim . and truely and aptly doth he tearme it a chaungeable representation or image of Eternitie : for as Censorinus noteth , Time in regarde of Eternitie , is but a winters day . Censo . c . 4. de di . na . But though time be as much obseured in eternitie , as a small penny is amongest the riches of Craesus , yet as that was part of his riches , so time must needes be a part of Eternitie . Cicero defineth time more vulgarly , to be a part of Eternitie with a certaine difference , of a yearely , monethly , daily , and nightly distance , Cic . lib . de fin. 4. so that Plato his definition hath relation to the cause of time ; Ciceroes to the persons that make vse of time . Philosophers haue left to posteritie many subtill , deepe , and learned discourses of time , but bidding their definitions and disputations farewell , I will examine and weye the distinct partes of time with a popular ballance , and according to common sence , taking that course to be most sutable to my profession . The partes of time according to the generall diuision of Nations are a yeare , a moneth , a day , an howre , and a moment : for the Olympiads and Lustra , as being proper to the Graecians and Romanes must be secluded from this Treatise , and Seculum as being a thing not vsuall in law , which now we handle must likewise be cassierd . Yet in speaking of time we may not forget to handle the circumstances of time as they be accommodated to the Law , and to the actions of men : As namely of a long time , a short time , a late time , an auncient time , a certaine time , an vncertaine time , a continuall time , a conuenient time , time past , time present , and time future . But first to speake of the yeare , Annus according to the Etymologie learnedly searched out by Varro , is nothing els but a circuit : for as the little circles are called annuli , ringes ; so the great circles or compasses of time are called Anni , yeares Var . lib . 5. de lingu . lat. . The yeare is a time , wherein the Sunne perfitteth his course , and that is accomplished in the space of three hundred , three scoore , and fiue dayes , and sixe howres almost : And this hath our Law well obserued , as may appeare by these verses : Ter centum , ter viginti , cum quinque diebus , Sex horas , neque plus integer annus habet 18. Elizab . 345. Dyer . . by which accompt ( if you subtract the howers and halfe dayes ) the quarter of the yeare will fall out as it is in our Law set downe , to be nintie and one dayes ; and the halfe yeare , a hundred eightie and two dayes , Ibidem . which was almost fully signified by Ianus his image in Rome , in whose right hand was the number of three hundred , and in his left hand fiftie and fiue . Macrob . lib . 1. Stur . ca. 9. Others haue made the same difference betwixt the yeare and moneth which the Merchants of some Countries make betwixt the ounce and the pound , deliuering their conceit in this verse : Vnciaque in libra pars est , quae mensis in anno . And though it be a common receiued opinion , that the Romanes at the first , and a long time after the foundation of their Citie did accompt but tenne monethes for the yeare , so that Ouid quarrelleth with Romulus his Astronomy in this maner : Ouid . lib . 1. fastor . Scilicet arma magis quàm sydera Romule noras . Yet if the course & circumduction of their yeare be well obserued , it will appeare to haue conteined the full space of twelue monethes , as may appeare by Plinie Plin . lib . 2. ca. 9. , Macrobius Macrob . 1. Satur . ca. 12. et lib . 1. in som . Scip . c . 6. , and Plutarch Plut. in Num . . And this was likewise the yeare of other Nations . The Romanes did begin their vulgar yeare at the beginning of Winter , as appeareth by Ouid : Bruma noui prima est veterisquè nouissima solis . Which course seemeth to bee agreeable to the course of nature , because then the sunne beginneth to returne vnto vs , and therefore wee may rightly deriue the beginning of his circuite from thence : The yeare is diuided into the Spring , Summer , Haruest , & Winter . The Romaines did accompt the spring that space of time which was betwixt the Calends of March & the Calends of May , Liuy . lib . 34. but the most common & currant entrance of the spring in the reputation of all the nations of the world , was when the plants or herbage of the earth began to waxe greene : and therefore it is rightly tearmed ver a virendo , as sommer is called aeslas ab aestu , and then is said to begin when heate beginneth . Tacit. de mor . Germ . The name of Autumne nor the thing it selfe ( as Tacitus reporteh ) was not knowne to the Germaines in his time , and diuers countries haue made diuers limitations of the spring , and therefore if it bee agreed betwixt Titius and Seius that the beasts of Titius shal pasture in the grounds of Seius all the spring time , the time shall be limited according to the dimension of the spring-tide in that countrey where the bargaine was made : and so it may be said of the other times , and seasons of the yeare , and if the occupation of a mans ground be granted to Titius , Seius , Caius , and Sempronius , so that Titius shall haue the occupation of the land in the spring time , Seius in sommer , Caius in winter , Sempronius in haruest , if the interest of any of the same come in question , the Iudge had need be well aduised of the certaintie , and the peculiar difference of these times according to the customarie obseruation of the countrey in which the grant was made , that he may suum cuique tribuere , and giue no erroneous iudgement . Some make a bipartite diuision of the yeare into winter and sommer without mentioning the spring , and haruest , defining the sommer to begin at the Equinoctiall of the spring , and to end at the Equinoctiall of haruest : Vip . in l. 1. § aestat . de ag . co . et aest . so that sommer and winter are diuided by sixe monethes : then I put case that land is demised to one to haue and to hold during the space of the whole sommer , whether may the lessee put in his beastes in the spring time , and it seemeth that the spring is to be excluded notwitstanding the diuision aforesaid , for the sommer being named aestus ab aestu the spring can haue no part in the sommer , for the spring is meane betwixt heat and colde , and therefore the said diuision seemeth to bee vnproper , for proprie non dicitur quod non dicitur secundùm quod sonat ; Baldus in l. vlt . c . de haer . instit . and in Swetia & other nations lying vnder the Northerne Poale this diuision can take no place : but if a man deuise the dwelling of his house euerie sommer to Sempronius , there it may seeme that the spring shal not bee omitted , because our dwelling is diuided into the sommer & winter dwelling : but if a man deuise his ground with all his sommer instruments of husbandrie , it seemeth that the spring is in this case to be excluded because there be other instruments of husbandrie vsed in the sommer time thē such as be vsed in the spring , winter , or haruest : But the imperiall lawes doe extend sommer from the Calendes of April , to the Calendes of October : the residue of the yeare they allot to winter ; and this diuision I will not denie to be grounded vpon good reason if we respect the yeare in generall not in particular ; for in the spring time the Sunne mounting to the toppe of one of the lines of the Equinoctial circle he commeth by degrees nearer vnto vs and so maketh summer , but in haruest he transcendeth the other line of the Aequator and so being farre remoued from vs causeth winter , and therefore not amisse by the cause of heat and cold , are the times of heate and cold distinguished .

The moneth had his name of the Moone which in the Greeke tongue is called Mene : and the reason of the name is because the moneth is measured by the circumuolution of the Moone , as Plato , Plat . in Cratil . Varro , Cicero , and others haue expounded it . Varro lib . 5. de lingua Lat. Cicer . lib . 2. de natur . deor . Some doe assigne to the moneth twentie seauen dayes , and eight howers : others twentie nine dayes and twelue howers : they doe measure by the motion of the Moone from poynt to poynt in the Circle , that is , when it is reuolued from one point to the same point : These do set downe for the moneth that course of the Moone in which it doth tend reciprocally to the Sunne , from which it newly digressed . The Athenians did obserue the later order of the moneth , from whom though the Romanes did in circumstance agree , yet in substance they accorded ; for their twelue monethes did not exceed that number of daies which doth consist of the twelue lunarie monethes ; so that it is apparant that both these nations ( as all other ) follow the Moone in this businesse : and for the more perfit obseruation of this course Sosigenes the Aegiptian perswaded and moued Caesar somewhat to alter the monethes , and by consequence the yeare , Plut. in vit . Caesar . neither is this abhorrent from commen vse ; for let the case be that A. promiseth to B. that hee will for some consideration pay vnto B. the next moneth 20. li. and the assumpsit is made the eyght day of March , whether may A. haue the space of the whole moneth of Aprill to pay the money in , or hee must needes paye it before the eight day of Aprill next ensuing , accompting the moneth from the eight daye of March : Surely by common intendement he hath the whole moneth of Aprill to pay it in : for the common people making more accompt of the Calender then of the Calendes doe set downe for a moneth as they find in the calender , not as curious wits may measure by the calendes or by like proportion . L. 4. § Sti . si haered . de statut . Et stat . August . lib . 1. emend . c . 2.

The name of day in Latine dies , Varro deriueth a deo or dio , both which tend to one purpose . In this discourse my endeuour is rather to open the natures then the names of things . The day is thus defined by Plato in his booke De definitionibus , if that booke be his : Dies est ab ortibus ad occasus : so that how many risings & settings there are of the Sunne , so many dayes he maketh . Aristotle more exquisitly , Dies est motus Solis supra nostrum horizontem . Aristotle Topic . 5. Two kinds of daies are most in vse , the ciuill day and the naturall day : the ciuill day it is therefore tearmed because diuers cities and countries made great diuersities of daies , to which they did allot seuerall compasse of time . The Romains did deduce the day from midnight to midnight Plinie lib . 2. c . 77. next following , placing the day as it were betwixt two nightes , as in the beginning of the world night was before the day , and night followed it : but the day of the Vmbrians was from midday to midday : of the Athenians from Sun sett to Sunne-set : of the Babilonians from the ryse of Sunne , to Sunne rysing : the naturall day is that which consisteth of 24. howers being the space wherein the Sunne is rowled about by the motion of the whole bodie of the heauen from a certaine poynt to the same point . The Astronomers make the beginning of this day at noone day or midday , as the Vmbrians ; because to all inhabitants of nations continuing still in their regions the sun commeth alwayes at that time to their Meridian , and to that circle which is caried through the toppes and poales of the heauen : and euery region hath his meridian of one sort though they haue diuers meridians in number & in particular , but the rising & falling of the sunne is not in any region alway of one sort , because the points are chaunged , and we see the sun diuersly to rise & fall : so that the Vmbrians may seeme in this to haue done rightly , the Athenians and Babilonians not rightly , the Romaines most rightely , who haue not as the other nations contrary to the order of nature , placed the night in the middest of the day , but haue made the night as the two extremes of the day , & therefore haue placed part of the night in the beginning of the day , and part in the end : of which consideration our law may seeme to haue taken regard in that the forepart of the night it assigneth to the day going before , & the later part to the day following , which may euidently appeare by the inditements of burglary : Crompt . I. P. Tit . indictamenta in fin. lib . fol. 224. but the reason of the Romane constitution is learnedly deliuered by Plutarche : Plut. in quaest. Roman . qu . 83. at midnight ( saith he ) when the day of the Romains doth begin , the sunne is in that region in the lowest point of the heauen , from which it beginneth to tende and to returne to vs and to ascend to our Hemispheare : wherefore rightly doth the day beginne then when the sunne that is the cause of the day doth moue toward vs , & therefore this constitution of the Romanes must needs seeme more probable then that of the Vmbrians , because the beginning of a thing is rather to bee referred to that time when the thing groweth to existence , then when it declineth and beginneth to leaue his existence , so that the opinion seemeth to be good , 11. Elizab . in my Lord Dyer his reports ; that whereas the case was that a lease was made to one of land the eight day of May to haue & to hold for twentie & one yeares thence next after ensuing , & the lessee entred the eight day , and his entrie seemed lawfull , and that he did not enter as a disseisor , for by the word ( thence ) the first instance of the day in which the demise was made is to be intended , and not the next day ensuing the date : 11. Eliz . 2●6 . Dyer . so that I cannot see vpon what reason in the accompting of the sixe monethes according to the statute of 27. H. 8. of enrolments the day of the date of the deede of bargaine & sale shall not be accompted for any ; 5. Eliz . 22● . Dyer . but the vulgar and common sort of men of all countries doe accompt the day from light to darkenesse , which order the Canonistes do obserue ; Comment . ad l. Titius § Luci . de lib . & post . the night as Plato defineth it Plat . in lib . de definit . according to common admittance is nothing els but darkenesse : Euentide is immediately after Sunset : twilight is a doubtful time equally consisting of light and darknesse , which is alwaies after euentide . For as betwixt knowledge , and ignorance there bee two meanes , namely doubting , and opinion , so betwixt day & night there is euentide & twilight . Ignorance is like to night , doubting like to twilight , opinion is like to euentide , because as opinion knoweth after a sort , but knoweth not truely & surely , because it is not grounded vpon certain reason : so euentide is after a sort day , but absolutely & fully it is not , because it is destitute , & bereft of the clere light of the sunne : knowledge which relyeth vpon the sound foundation of things knowne is answerable to the day , which is full of cleare , and perfite light . Now as opinion is more like to ignorance then to knowledge ; so euen-tide is more like to night , whereupon ensueth that twilight must needs bee more like vnto night : but now suppose that a paiment of money is assumed to be made within the compasse of such a day , whether is it to be intended of the Romaine day , or some other ciuill day , or the natural day which is wholly in vse amongst the Venetians : for in Venice the clocke is told foure and twenty times for the day : and it is meete that this question should be decyded by the custome of each countrie .

Now come we to speake of howers , which to the Romaines were not in vse during the space of three hundred yeares : therefore in their lawes of the twelue tables , times are otherwise set downe , namely , Sunne-rise Noone , and Sunsett : the first , second , third , and fourth watch , plenum forum , ful market , boum solutio , the time of the loosing of the oxen from the plough , accensa lumina , candle light , and such like names . But to know the proper vse of these howers that are fitte to bee obserued , which Paulus the Ciuilian noteth : Cuiusque diei maior pars est horarum septem primarum diei , non supremarum : he meaneth not that there should be fourteene howers of the day , because it is manifest that there are but twelue , but his meaning is that the greatest parte of the day is spent in the first seuen howers , if you accompt from the first hower to the seuenth inclusiue , as namelye , from sixe a clocke in the morning to twelue a clocke : for then there will remayne to the other parte of the day but fiue howers ; And the former parte of the day is not onely the better for the number of howers , but because men in these howers are more apt for the dispatch of their busines : Wherefore Nonius Noni . lib 9. de compendiosa doctrin . vpon these wordes of Virgill : Nunc adeo melior quoniam pars acta diei est commenteth thus . Our youth is the best part of our age , and so Maro wisely calleth the first part of the day the better part , as being the youth of the day : for if a man should number seauen howers from a eleuen of the cloke to fiue in the afternoone ; yet these howers will not be so conuenient for perfitting of busines , as the seauen abouesaid : and therfore he that demaundeth six pence for trauayling to a place on foote from eleuen to fiue , to which an other hath gon for a groat from six to twelue , is not altogether vniust , because in the afternoone men be more vnapt and more vnable to trauaile .

The last and least part of time ( if it be any part of time ) is a moment , which may better be imagined then described , for it is as swift as a man can imagin : and what is more swift then imagination ? It hath receyued a definition somewhat obscure of Plato : Momentum est quod nullo prorsus in tempore est Pla . in Parmen . . It is taken by some to be punctum temporis : for as a mathematicall point is that cuius nulla est pars , so a moment is a point of time cuius nulla est pars : yet Pliny seemeth to distinguish more rhetorically then truely punctum temporis from a moment when he saith : Quod momentum , aut immo quod temporis punctum , aut benefici● sterile , aut vacuum laude Plini . in Panegyr . , the existence of a moment cannot possibly be discerned , and therfore is not so much as the twinckling of an eye . The vse of a moment is more fit for the operation of Law , then for the act of a man : for the Law doth operate without compasse of time in an instant , but man neuer ; for euery act of man must haue space longer or shorter , according to the qualitie of the work : But the nature of such instants or moments which the Law doth imagin is such & so sodaine , vt omnem respuant moram , as in the Ciuill Law is well noted l. 23. §. vlt . D. de adult . : And the reason is because in the operation of Law , that which it doth imagin to be done , is dicto citius , presently , and without delay done l. in suis . D. de lib . et post . : and therefore it is commonly said , it is done ipso iure , or it is said ipso iure , or ipso facto . But this course can not be obserued in the actions of men , who can not doe any thing without space of time , because their act is alwayes continuate , and therefore must needes be done continuo tempore . And whereas the act of man is mixt with the act of Law : though in regard of the same thing the act of the Law be momentary , yet the act of man must needes beare some delay . Those thinges by the ciuill Law which are taken from enemies , doe incontinent become his who doth selse and take them l. 5. §. vlt . de acquir . re . do . , The Law doth giue them vnto him presently , but yet there must be a time to take them , that the Law may giue them . And so if when a Lease is made to A. of land for the terme of the life of B , and A. dieth , C. entreth into the land , and inioyeth it , as an occupant ; the Law because it wil not haue the freehold in suspence , doth imagin that it was presently and immediatly in C. after the death of A , and that he entred presently : but if we respect this entrie as the act of man , we must needes imagin that he had some time to enter into the land , and by his entrie , which is an act consisting of motion , to gaine the freehold .

It remaineth now according to our purpose , that after this discourse of the partes of time , some thing should be spoken of the differences of time , which I will handle verie briefely : for the matters precedent haue giuen some light thereunto , and they are not of themselues verie obscure .

And first to speak of the time which we cal a continuall time : that in the ciuill Law is sometime taken for as much as ( during a mans life l. 1. §. pe . de off . pre . vrb . l. 2. C. de his qui latr . ) and therfore he that hath purchased land for his life , is tearmed Perpetuarius Alci . lib . 1. parer . g . c . 37. : and in the common Law these wordes ( a touts inours Littlet . lib . 1. cap . 1. fo . 1. ) make but an estate for life Littlet . lib . 1. cap . 1. fo . 1. , yet in proper sense it extendeth vnto the last mark of time : A long or short time is distinguished either by the measure of the parts of time abouesaid , or by the measure of the Law , which is the discretion of the Iudge . The difference which is made of auncient time and of late time in the ciuill Law , is rather plain thē ponderous , Vetus accipietur quod non est nouum In l. 11. de uiui . leg . : And therefore the law of the twelue Tables they call their auncient Law , and that which followeth it the new Law l. 1. l. 3. D. de pet . haered . . But in this sense the Law of Nations should be the auncient Law , and all other humane Lawes , new Lawes , but auncient by the interpretation of a good Ciuilian is that , cuius initij memoria non extat l. 2. in prin. de ag. plu . ar . c . §. idem lab . aut si in agr . , and he expoundeth this to be : if there be none aliue which knoweth when it had his beginning : Neither hath any heard of the beginning of the thing of those which did know it Idem Lab . aut cum quaeritur eo . . A certaine time is that which hath a certaine beginning and ending ; An vncertaine time is directly contrary : Certaine times are the yeare , the day , the moneth , &c. An vncertaine time is signifyed by these wordes ; before , after , in times past , some time , about such a time , &c. But there be diuers sortes of vncertaine times : First , either that which is altogether vncertaine , as when such a ship shall come out of Asia : for we know not whether it shall at any time come from thence , or when it shall come . Secondly , that is said to be vncertain , which though it be vncertaine whether it shall be or no : yet if it be admitted to be , it is certaine when it shall be : as if I graunt vnto one the Corne that shall grow in such a ground , for I know not whether it shall grow or no : Or if I promise to be a godfather to that child which shall be borne of Martha , within three daies after it be borne , for I know not whether any shall be borne : Or if I promise to pay such a summe of money when Titius shall be of full age : here it is well knowne when Titius shall be of full age , but it is vncertaine whether he shall liue till he come to full age . 3. that is vncertaine , which though it be certaine that it shall be , yet it is vncertaine when it shall be ; as the howre of death . The present time is so small and vnsensible , that it is almost of no continuance , and it is but the conioyning of that time which is past to that which is to come ; Time past is that which wanteth his beginning ; And time future is that which neuer had ending . A conuenient time is after diuers sorts : First , either it is conuenient for some , and not for all ; as when some causes are to be heard , and not other some : Secondly , or profitable for all , but not alwaies ; as the Termes whilest there are no dayes of vacation , dies non iuridici : Thirdly , or it is profitable for all , and alwaies ; as the Assises .

The second Chapter . That by the Law of Nations , Emperors , Kinges , and absolute Monarches , haue full power and aucthoritie to seise the Landes and Goods of their subiects , condemned for heinous offences .

IF any man be so straitly minded , that he thinketh this prerogatiue to be too large and ample for an absolute Monarche : let him think there withall that himselfe is so base minded , that he cannot sufficiently iudge of the great worth and demerit of so high an estate : for the name of a king importeth so great paines and charge , that a kingdome seemeth not to be a sufficient or counteruailable recompence : For Themistocles his choise must either be verie reasonable , or exceeding desperate , when he accompted it better to sinke into his graue , then to ascende to a throan : Wherfore not doubting of the great charge of it , let vs examin the continuall custome of Nations in the executing of this power . S. Lewis the French king , famous in that nation for integritie , & iustice , doubted not by publike iudgement to prescribe the farmes , lordships , and landes of Peter the Earle of Dreux : And so were the goods and possessions of Charles Duke of Burbon seised and forfeited Bodi . lib . 5. de repub . c . 3. . And they haue a Law in Scotland , that the goodes of persons condemned shall go wholie to the Eschequer without any deduction or reprisall to wife , creditor , or children . The Romanes did allot their fines , penalties , and forfaitures to the sacrifice , and seruice of their Goddes , and therefore they were called Sacramenta Festus in verb . sacrament . . But the Athenians did giue onely the tenth part of the goodes that were forfeited to religious vses : as may appeare by the record of the condemnation of Archiptolemus and Antiphon , which runneth in these tearmes , Archiptolemus & Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi : bona eorum publicata , decima Mineruae data , domus eorum solo aequatae : And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of giuing the goods of condemned persons to the publike treasury , and did therefore establish a Law , that they should remaine to their children Authent . bona damnato . de bonis damnator . C. . Yet diuers held this Law to be new , & different from the course of auncient Law-makers : for euen in the most auncient times in case of high Treason in all common weales of the world , such forfeitures haue been admitted : for it was thought that the goodes of such persons condemned , were either by fraude , violence , or other corrupt courses wrested from the common weale : and therefore were to be restored to it againe : or els because such persons hauing offended against the common weale should satisfy it that way : & therfore were such goodes conueyed away by Law from wife and children , because for the most part they were vniustly heaped together for the aduancement of wife and children . But such prerogatiues haue been in auncient time so firmely annexed to the Septer and estate roiall , that by the ciuill Law such things which are properly called iura maiestatis , by the common Law iura regalia , cannot be seuered from the regall dignity , & therfore Baldus calleth them g sacra sacrorum , and Cynus , indiuidua h , the inseparable incidents of a kingdom : And by the ciuil Law such things can not be seuered from the princely Diadem , neither can any man prescribe in them Bald . con . 174. lib . 3. et con . 193. co . . And so it is said in our Law , that where the King hath any commoditie in the right of his Crowne ; as if he haue a Mine conteining in it gold or siluer , by the graunt of the land in which it is conteined , the Mine doth not passe , because he hath that by his prerogatiue royall , and they be two seuerall thinges and of diuers degrees 10. Elizab . Com . Informacion pur Mines 310. per Wray . And whereas the Priorie of Wenlocke was one of the auncient Priories which were of the foundation of the Crowne , and the King graunted the said Priorie in ample words : yet the King onely did medle with the Mines of gold and siluer that were in it Fitz . Na . br . Corrod . 232. : And by the graunt omnium & singularum Minerarum , these Mines shall not passe Com . Inf. pur Mines ib . . And though the king graunt to one the retourne of all maner of writtes , yet he shall not haue the retourne of the summons of the Eschequer , because that toucheth the Crowne , and is not betwixt partie and partie 22. E. 3. lib . Assis . pla . 49. . Neither by the Law of England can any man prescribe in such thinges : For it is said 1. H. 7. that no fraunchise may prescribe to hold plea of Treason ; and whether the king may graunt any such libertie or no , the Iustices were in great doubt 1. H. 7. 23. . But 46. E. 3. it was held by Kniuet Iustice , that a man might claime a fraunchise of Infangtheefe , and Outfangtheefe , and waife and straye by prescription ; but he cannot haue the chattels of Fugitiues or Felons , vnlesse it be by especiall graunt , because that it belongeth vnto the King as to his Crowne , and therefore can not passe from him , but by speciall graunt : 46. E. 3. 16. and 21. H. 6. this diuersitie is taken : such thinges as accrue to the king by matter of recorde , as the fines , issues , and amerciamentes of courtes doe not lie in prescription : but in such things as belong to the crowne , & the title of thē doth not grow by matter of record , as waife , stray , wrecke of the sea , treasure founde , and the like a man may praescribe in , 21. H. 6. praescript . 44. but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes : by which princes must bee directed not by their owne voluntary conceits or vnsatiable desires , least it happen that magna imperia , be magna latrocinia : for good gouernours will not imitate the lewd monarches of nations , as Caligula , Nero , Caracalla , Carinus , Romaine Emperours , nor Seleucus , nor Alexander the great , or rather the proud , which did claime a generall and absolute power indefinite & illimitate ouer all men , ouer all things , without difference or exception : which did thinke that they might giue lawes to others and not to bee bound by any ; which pretended that there was but one law for all common weales , and that was to obey euerie thing which the king commaunded , and that that was iust in regard of the subiectes which was profitable to their ruler , like to that prince of pirats and robbers in Heliodorus , Heliod . lib . 1. Aethiop . histor . Si imperij lege vtendum fuisset , prorsus mihi velle suffecisset : Like to that saying of Iulius Caesar the vsurper . Sylla literas nescijt qui dictaturam deposuit : mecum homines consideratius loqui debent , ac pro legibus habere quae dico : Sueton in Caesar . like to that of Iulianus though spiced with some sprinkle of mildnesse : Polliceor absque omni praerogatiua principum , qui quod dixerint , vel sensuerint pro potestate authoritatis iustum esse existimant : Ammian Marcell . lib . 23. or like to that sinister clause of the Popes insolent vanitie ( de plenitudine potestatis , ) the last of which wordes Baldus playing withall , putteth in steade of it tempestatis : Alciat . reg . 3. praes . 8. et ad L. 2. C. de in ius voc . yet I will easilie graunt , that if any prince doe by sword and conquest subdue any countrie ; as the whole countrey is gained and possessed by this exploit : so all the landes and goods of euery inhabitant in that countrey are his , vntill hee did giue them or restore them vnto the former owners : As by the lawe of this realme of England , if a man be attainted of felonie , and the Queene pardoneth him all fellonies , and executions , and doth likewise pardon and release all forfeitures of lands and tenements , and of goods and chattels , this pardon and this release cannot serue but onely for the life of the partie , if the office be found , for then the land is the Queenes by matter of recorde , and therefore there must bee expresse wordes of restitution : and as to the goodes , the Queene is entituled to them without office : 29. H. 8. Br. chart . de pard . 52. so if it be found by office that I. N. the Queenes tenant was seised of certayne landes , and dyed seysed , and that W. his heyre intruded , and after by acte of parliament the Queene pardoneth all intrusions , in this case the entrie and offence are pardoned and released , but not the issues , and profits : for the Queene was before entitled by matter of recorde 33. H. 8. Br. charters de par . 71. intrusi . 21. Issues ret . 22. for when any thing commeth to princely possession which did before belong to any inferior person , it cannot bee restored to him without actuall donation . And Xenophon sayeth , that it hath beene a perpetuall lawe amongest all men , that all thinges taken by warre , whether they bee money , goods , or men , doe belong to them which tooke them : Xenoph . lib . 7. Cyropae . and Thucydides affirmeth the same to bee a common lawe to all nations : Thucyd . l. 3 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods , and did remitte the residue to the conquered persons . Appian . lib . de bel . ciuil . 2. And it hath alwaies beene accompted the propertie of barbarous nations to haue no lawe written nor ratified by common consent , neither touching these rights nor prerogatiues , nor other matters , but onely the voluntarie conceite of the monarch , as Liuie hath iudiciously obserued : Liui . lib . 37. But Aristotle maketh one exception from the rule , and that is of the Spartan Kings , whome hee affirmeth to haue directed their actions by prescript of lawe : Ar. 3. polit . and Diodorus Siculus saith , that the Aegyptian kings did first beginne to rule by a setled and determinate lawe , and that all other nations were gouerned by the chaungeable wil of their soueraigne , Diodor . Sicul . lib . 2. and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian ; Te legibus subiecisti , legibus Caesar , quas nemo principi scripsit : And presently after he saith , Quod ego nunc primum audio , nunc primum dico : non est princeps supra leges , sed leges supra principem . Plin . in Panegyr . But to open and declare further the soueraigne and ample authoritie of monarches ouer the lands and goodes of their subiects , though it haue beene in auncient times held and affirmed by the ciuill law , that such thinges as are parcell of the law of nations could not be taken away by the prince from his subiectes : and therefore they might not be depriued of their demesnes or inheritance of lands , or of the property of their goods and chattels which they enioy by the law of nations : § Sed natural . instit . de iu . na . as I haue sufficiently shewed in my Direction to the study of the Law , Cap. 7. & 8. but onely of such thinges as belong to them by the Ciuill law : yet by the opinion of the later Ciuilians this is helde to bee no law , but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth Deci . Cons . 209. in casu 2. 69. consultus . 390. quoniam 519. visis . 557. accurate . , and this later opinion seemeth to bee more reasonable , and more consonant to the truth : for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations , yet the meanes wherby they are acquired are prescribed by the ciuill and common lawe : so that they are not altogether parcell of the law of nations : Bal . & Ia . in l. omnes . C. Si con . ius vel vtilitat . pub . Againe the right of demesne and property is not alike in all nations , Herodot . li . 4. Strab . lib . 11. Arist . lib . 2. polit . Tacit. de mor . Germa . Caes . lib . 4. & 6. de bel . Gal. but is moderated , and ordered by the lawes of particular common weales ; But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands , goods , chattels , or dammages : Surely this is permitted by no law , but by the ciuill l. 2. C. de prec . imp . off . and common law expressely prohibited : for the king cannot grant to any person that he shal not be impleaded or sued , in this or that action : & though his highnesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same mannor , yet in this case he doth not take away the action of the partie , but doth onely restreine him to bring his action in a certain place : 8. H. 6. 19. But here it may be obiected that a king or absolute monarch may without cause seise the lands & goods of his subiects : li. vlt . C. de consul . for it is plaine that a king hath more power ouer his subiectes , then the father hath ouer his children : but by the ciuil law the father may take away the goods of his children when hee will : l. placet . 79. D. de acquir . haere . l. acquirit . 10. D. de acquir . re . do . therefore the king may take away &c. To this reason grounded vpon the ciuill lawe , I do thus answere , that by the law of nations kinges haue not such an indefinite power ouer their subiects as fathers by the ciuill law haue ouer their children : for by the law of nations kinges were chosen and ordeined at the first for the safegard and protection of the lands goods & persons of their subiects , so that they may not without cause bereaue them of their goods , and therefore there is a good rule in the ciuill law that in priuatorum agris , nihil ne publico quidem consilio cum ipsorum iniuria capi ius est . l. Venditor . 13. D. de com . praed . And to that purpose Cicero speaketh well : Videndum erit ei quirempub . administrabit , vt suum quis que teneat , neque de bonis priuatorum publice diminutio fiat : and for this cause God did appoint a certain portion of land to euery tribe of the Israelites : Deutero . 17 and by reason of a priuate title Naboth would not sell , or chaunge his vineyard with Achab 1. Reg . 21. and in the inauguration of the king of Hungarie this was exacted of him by oath : vt iura regni integra conseruaret : C. in tellect . 33. ex tr . de iureiuran . And in the ciuill law it is said , Qui pleno iure Dominus est , alie nandi , dissipandi disperdendi , ius habet : l. 7. cod . de relig . l. sed etsi l. 25. §. consuluit D. de haered . petit . And againe , suae quisque rei arbiter , ac moderator est . l. in remandat . 21. C. demand . So that it is euident that without cause , the propertie which subiectes haue in goodes and landes may not bee altered by their prince . And therefore wittily sayeth D. Gentilis , that they which argue to the contrarie do not dispute , or drawe their arguments ex cast is fontibus Philosophiae , aut ex ipsis iurisprudentiae riuis , sed e scholis sophistarum : hallucinati sunt Theologi , adulati sunt iurisconsulti , qui omnia principibus licere asceuerarunt : Albe ric . Gentil . Dec. 1. disput . 2. disput . I would not be mistaken in this Chapter , sithence I hold an indifferent course betwixt prince and people : neither consenting to them which say , that princes may seise the lands and goods of their subiects without cause , nor to them which thinke that they may not seyse their lands and goods for any cause : but my resolution is , and the summe of this discourse is , if it bee diligently and impartially obserued , that princes may lawfully claime , and take to their owne vse the lands and goods of their subiects for the causes abouesaid , and prescribed by lawe , and not otherwise : and by this word ( Princes ) I meane none but absolute Monarches : for the law of nations alloweth this prerogatiue to none other . And therfore I do greatly like of that saying of Hipocrates vrged in the ciuill law : Lex est rerum omnium domina , quia scilicet & ciuitatis cuiusque & ciuium singulorum patrimonium constituit , definit , tuetur : Lex sola dominium rerum confert : sola dominij acquirendi modos constituit , citra quos acquiri nullius rei dominium potest . §. 2. de bon . posses . & apud Vlpi eo . Tit . reg . 19. This foundation being laid , I hope my assertion may firmely stande that the law of England in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and reasonable : as when a true man is pursued as a felon , and he flieth , and waiueth his owne goods , these are forfeited as if they had beene goods stolne . 29. E. 3. 29. 37. H. 8. Br. Estray . 9. Stam . fol. 186. a. And so if a man be outlawed of felony or treason , he shall forfeyt all the landes & tenements which he had at the time of the felony or treason committed , or at any time after , as well as if he had beene attainted by verdict : 28. H. 6. 5. howsoeuer M. Parkins holdeth opinion that attaynder by outlawrie shall haue relation to the exigent , as to the landes and tenements : so that a feoffement of land , or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit : but he saith that as to an attainder by verdict , that it shal haue relation to the time of the felony done , according to the supposall of the inditement , as to lands and tenementes : and so it is of an attainder by confession : Parkins Graunts . 6. But M. Stamford being better aduised saith , that as soone as any of the offences aforesaid are committed , hee is restrained to make a gift or any other alienation of his lande : and if he doe , it shall presently bee made void by his attainder , and it is not materiall whether the attainder be by outlawrie or verdict , and this is agreeable to the booke of 38. E. 3. fol. 37. Stamford fol. lib . 3. 31. a. but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent , and forfeiture by attainder by verdict shall haue relation to the verdict . Stamford . 192.

The third Chapter . That the worthinesse of blood hath beene principally respected of all nations .

THe diuision of inheritances in stirpes , & in capita , hath made great diuision in diuerse common weales , yet in all of them the worthinesse of bloud hath beene regarded : By the Romane law the sonne of the elder sonne who is dead shall equally succeede in the inheritance with the second sonne . And whereas in Germanie there was a contention betwixt the vncles and nephewes of the right of inheritances , and for the deciding of it , the Emperour Otto the first , did cause a Parliament or generall assemblie of estates to be held for the disceptation , and deciding of this doubt : When after much busines and argument , no determination could be had , the matter was ordeined to be tried by single combate , an vsuall thing in these daies ( for it was about the yeare of the incarnation of our Sauiour nine hundred fortie and two Witichiudus lib . 2. histor . 2. Sigebert in chronic . Ottonis 1. ) and a formall triall referred to God , when mans wit was at a nonplus : But in this case , that part ouercame which did accompt the sonnes of elder sonnes as sonnes ; and therefore it was ratified by Law , that they should equally diuide the inheritance with their vncles . Amongest other nations diuers contentions haue risen about this matter : for when Eunomus the King of the Lacedemonians had two sonnes , Polydectes the elder , and Lycurgus the yonger , and Polydectes deceased leauing no sonne lyuing at the time of his death , and therefore Eunomus being dead , the septer of that kingdome came to the handes of Lycurgus : afterward when Polydectes his widow had brought forth a sonne , Lycurgus did willingly , and readilie yeeld to him the septer Plut. in vit . Lycurg . Iustin . lib . hist . 3. : Which act of Lycurgus agreeth fully with our Law , whereby it is ruled , that if a man haue a sonne , and a daughter , and the sonne purchaseth land , and dyeth , and the daughter entreth , and after the father begetteth an other sonne of the same wife , this sonne shall haue the land 19. H. 6. 6. . So if a man enfeoffe an other vpon condition , and the condition is broken , and the feoffor dyeth without issue his wife priuement enseint , and the brother of the feoffor entreth for the condition broken , and after a sonne is borne , he shall auoide the possession of his vncle , & may lawfully claime the inheritance 9. H. 7. 25. . And it is likewise said , that after two , or more discents , the heire afterward borne claiming by discent may enter into the land ; but he shall not haue a writ of Accompt for the mesne profites , nor any writ of Wast 9. H. 6. 23. . But in cases of purchase the Law taketh a difference , and therfore it is said 5. E. 4. by Billing , that if a man deuise land to a man , and his heire , and the deuisee dieth hauing issue a daughter , his wife being priuement enseint with a sonne , who is afterward borne , the daughter shal reteine the land in perpetuum , which the Court graunted 5. E. 4. 6. . And 9. H. 6. it is said , that if a remainder cannot veste in any at the time when it falleth , it shall not veste in him that is borne afterward , where an other hath entred before 9. H. 6. 23. 3. Eliz . 190. pla . 18. . But to retourne to the examination of this matter by historie , Pausanias reporteth that Cleomenes the king of the Lacedaemonians being dead , a controuersie sprung betwixt Areus the sonne of Acoratus the eldest sonne of Cleomenes , who died before his father , and Cleonymus the second sonne , the vncle of Areus , but by Senate-decree the kingdome was adiudged to Areus Pausan . lib . 3. . And Polydore Virgill reporteth that king Edward the third being deceased , Richard the second , the sonne of his eldest sonne obteined the kingdome , and was preferred before Iohn , Edmund , and Thomas , the sonnes of king Edward Polyd . virg . in hist . reg . Angl. . Paulus Aemilius an excellent writer of the matters of Fraunce likewise telleth , that when Hanno had inuaded the kingdome , and expulsed Erkenbalde the sonne of his elder brother , this matter was brought into question : in the ende Hanno was constrayned to laie aside armes , and to stande to the iudgement of the Peeres , who adiudged that Erkenbalde should haue the same power and interest in the kingdome , which his father might haue had if he had suruiued Paul . Aemil . in Tit . Carol . Crass . . Neither will I denie that examples may be produced on the contrarie part : as namelie the contention betwixt Artemenes and Xerxes for the kingdome of Persia : for it is deliuered by Herodotus Herodot . lib . 7. , Iustin Iustinus lib . 11. , Plutarch Plut. in Artaxerx . , that a controuersie beeing raysed in the kingdome of Persia betwixt Artabazanes ( as Herodotus ) Artemenes , as ( Iustinus calleth him ) and Xerxes the sonnes of Darius Hystaspes about the succession in the Monarchie of Persia , Demaratus was at the same time there , who was driuen and expulsed out of the kingdome of Sparta , and he signified vnto them , that the Law and custome of the Spartanes was , that the sonne that was borne after the father had attained to the kingdome , was to be preferred before the elder brother who was borne before ; for which cause the kingdome was adiudged to Xerxes the yonger sonne , who was borne of Darius being king , whereas the other was begotten of him being a priuate man : But this iudgement was after reuersed ; For when after the death of Darius , the same controuersie was handled betwixt Arsica begotten of Darius being a priuate man , and Cyrus being borne of him after his aduauncement to the kingdome , and Parysatis the mother did in the behalf of Cyrus vrge and reuiue the controuersie betwixt Xerxes , and his brother , the Persians notwithstanding the former iudgement , did now adiudge the kingdome to Arsica Plut. in vit . Artaxerx . . Neither am I moued though in the contention for the Dukedome of Millayne , betwixt Lodwike and Galeatius bretheren , whereof the one was borne before his father obteined the Dukedome , the other after , the contrarie were determined for Law Guicciard . lib . 1. histor . : For by the most examples of euery common weale , and by the continuall practise of nations most ciuill ( which onely course I obserue in this discourse ) the right of Primogeniture , or elder-brothership is fenced , supported , and defended against this last decree of the Millanasses , and that first of the Persians : For Herod the king of the Iewes , did preferre in the succession of his kingdome Antipater , who was borne before he was king , before Alexander and Aristobulus begotten after he was king Ioseph . lib . antiquit . 16. . And many yeares after in Hungarie , Bela their king being dead , Geysa being borne when he was a priuate man was inuested with the Crowne Fl. Blondus Decad . 2. lib . 6. Micha . Ritius lib . de regi . Hungar . 2. : and before that Otto the first could be setled in the Empire of Rome , his brother Henry made a quarrell to it , because he was borne when his father was Emperor : But the matter discending to armes , and battaile , victorie did adiudge the Empire to Otto Sigebert . in Chron . : Wherefore two or more contrarie examples are not in this case to be regarded ; As that of Genzericus the king of the Vandales , who made his testament in this forme , or rather this Law in forme of his testament , Si Rex moritur , qui ei genere proximus , et natu maximus erit regni haeres esto : for Procopius noteth his great age when he made this Law , and it may be that others will note him for his dotage if he did amisse , for his discretion , if he did it to preuent a daunger Procop . lib . de bel . Vandal . . So when Charles the king of Sicely died he had two sonnes , Charles Martell , and Robert : Martellus died liuing his father , but leauing a sonne , whereupon the Lawyers had plentiful matter of disputation offered vnto them , whether the sonnes sonne should be preferred before the vncle in the possession of his graundfather : but by the Popes meanes , Robert obteyned the kingdome : But the Emperour Fredericke reuersed this sentence , and the Pope cancelled his rescript r . But D. Bartolus giueth this reason of the Popes doinges , because the kingdome of Sicilia was one of the fees of the Church of Rome , so that it did not belong to Robert by any lawfull succession , but by the graunt and inuestiture of the Lord of the fee Barto . in Arth. post fratr . C. de legit . hered . . Neither is it materiall that the Nomades , Barbarians , did preferre the yonger bretherne before the children of the elder bretherne , as Strabo reporteth : {αβγδ} . Strabo lib . 16. yet I will graunt that in the succession of regall dignities , the worthines of bloud is lesse to bee respected , then in the succession of common inheritances , because in that case the commoditie of the subiectes , and the abilitie of them that are to succeede is politikelie to bee respected : And therefore diuers Ciuilians doe with vnited consent pronounce that the good estate of the kingdome and subiectes , the profite , peace , and safetie of the same , is more to be heeded quàm sanguinis series , the course of bloud Luc . de Pen . in 5. nepot . C. qui num . lib . 10. et in l. 1. C. de lyro . lib . 12. Bald . in c . 1. de feud . March . . And Roboam preferred Abias his yonger sonne , before his elder bretherne in the succession of his kingdome .2 paralip . 11 . And Salomon the yonger brother 2. Reg . 1. was preferred before his elder bretherne : But this must be done warilie , and by the warrant of a good conscience ; otherwise it can neyther please God , nor profite man , least a king doe by his choise preiudice his subiectes ; as Micipsa did by the adoption of Iugurtha Salust . in bel . Iugurth . . But the reasons are manie and forceable , wherefore the worthines of bloude shall in the course and conueiance of inheritances bee principally respected . First , Ius quod personae inest per modum substantiae , est ab ea inseparabile , et in nullo alio subiecto potest verificari Arg. l. for did . C. de excus . mun . lib . 10. . But ius primogeniturae is in the eldest sonne , or in his issue per modum substantiae : therefore it is inseparable from him , and cannot extende to any other . Secondly , the aucthoritie of Vlpian prooueth it , affirming that hee is a patritian , who is borne before his father was made a Senator , as well as he , who is borne after that hee is possessed of the Senatorie calling l. Senator . S. D. de Senat . . Thirdly , it is apparant by manie places in the feudall Law , that sonnes and nephewes may succeede in the fees , and inheritances of Dukes , Marquesses , and Earles : and so it is of the inferiour and vulgar sort of men . And it is well said of D. Hotoman : Ius sanguinis quod in legitimis successionibus spectatur , ipso natiuitatis tempore quaesitum est . Fourthly , it should bee against all Lawes proximitatis graduum , that they which are in a more remote degree the worthines of consanguinitie should be preferred before them that are in a neerer degree . Fifthly , because Primogenitura is an inseparable incident to the eldest sonne , and whatsoeuer is claymed by this , must bee claymed by the person of the eldest sonne , and none can succeede in the place of the first begotten as first begotten , because there cannot be two first begotten : But no Law more respecteth the worthines of bloud then the common Law , which preferreth the brother before the sister in case of discent : the elder brother before the yonger , whereas the middle brother purchaseth land : the sister before the vncle , and the vncle before the cosin Littlet . Tit . Fee simple . , and all these particular prerogatiues of kinred Mast . Littleton windeth vp as it were in one clew , when he saith , that when a man purchaseth land in fee simple , and dieth without issue , euery one , that is his next cosin collaterall for default of issue may inherite : and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab . in Cleeres case , that in a collaterall discent from any which purchaseth landes , and tenements , and dyeth without issue , the heires of the part of the father and which are of the bloud of the auncestors males in the lineall ascension by the father in the same degree , as the brother of the graundfather of the fathers side , and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues : And so the brother of the great graundfather of the fathers side , namely the brother of the father , of the father , of the father of the purchasour and his issues bee they male or female shall bee preferred before the mother of the great grandmother , namely the brother of the mother of the father of the father of the purchasor and his issues . For the female sexe is more base then the male in lawe . And it was likewise agreede , that if the purchasor dyed without issue , and hath not any heire of the part of the father that the land shall discend to the next heire of the parte of the mother , that is , to the race of the heyre of the males of whence the mother is discended , rather then to others , and in this case of Clere because the bloud which was betwixt the vncle of the part of the mother of the heire , and the heire himselfe came immediatly by the woman , but the bloud which was betwixt the cosin germane of the fathers side , & him though it came originally from the woman , namely the grandmother , yet it is deriued to the heire by the males , so that the dignitie of the bloud doth surprise and excell the proximitie of the degree ; therefore it was adiudged that the cosin should haue the land . 15. Eliz . comm . cleres case . 442.

The fourth Chapter . That in making title by prescription and continuance of time immemoriall , all nations haue consented .

OF all worldly thinges time is most puissant : for it endeth some things quickly , some things once , and at last , some things it preserueth , some things it continueth vnto the end of the world , and the force of time is pretily described in these poems .

Res omnes , aurum , chalibem , deglutio , ferrum , stagna , lacus , fontes , ebibo , tum fluuios , Tabida consumit lignum , lapidesque vetustas : nullaquè res maius tempore robur habet .

If by the course of nature time be such an incroacher vpon other things , then surely arte & law doth imitate nature which giue vnto it such power and authoritie , as to chaunge , to raise , to alter , to defeat , to strengthen and to establish titles , neither doth the law of nations attend the strict circumstances of the ciuil or common law , in which these two lawes doe square : for by the ciuill lawe there is required iust title which the common law requireth not : and bona fides Gl. h . c . illud de prescrip . which the common law requireth not and continuall possession , which the common lawe onely requireth . Prescription was first brought in , that there might be a certainty of titles and peaceable possession without contradiction , for a long time might turne to a right : wherefore it is well obserued in the ciuill lawe bono publico intraducta est vsucapio , & praescriptio vt sit aliquis litium finis : b . lib . 1. de vsucap . whereupon that speech of the Lacedemonians in Isocrates is grounded : Wee holde this lande giuen vnto vs by the posteritie of Hercules , confirmed by the Delphicke Oracle , and the inhabitantes of it being ouercome of vs ( heere note a triple title in showe , and yet all these in effect but a prescription ) yee knowe well that all possessions eyther priuate or publike to bee confirmed by prescription of long time : we haue held Messana more then foure hundred yeares . Isocra . in Arch. And so Iepthe did pleade prescription against the Ammonites ; Iudic . c . 11. This land ( said he ) haue wee possest three hundred yeares . The French maintaine their title of Fraunce onely by prescription , as Bodinus confesseth : Bodin . lib . de repub . for conquered it was by king Edward the third that happie & triumphant Monarch : assured to King Henry the fifth and his heires , Graft . in H. 5 not to Queene Katherine and her heyres : Pet . Mar. comm . in lib . iud. And some Diuines holde ( for others doe oppose themselues against this lawe of prescription ) Aug. de te . ser . 105. Epiphan . and obserue that the Iewes neuer made question of the title of their Semi , because the Cananites did defend themselues by the prescription of 500. yeares : wherefore Artabanus the Parthian king did , as Tacitus sayeth , Per vaniloquentiam vainely demaund of Tiberius the territories & possessions of the Macedonians hauing bin a long time possest of Cyrus and Alexander . Tacit an● . li. 6 And Soliman more soundly did demaunde the rightes of Constantine the Emperour after a thousande yeares . Ioui . 30.34 . But most vnaduisedly of all did the king of Persia demaund all these thinges which did belong to the Persian Empire from the first foundation of their Monarchie vnto the conquest of Alexander Magnus , of Constantine and his sonne , and of Alexander Seuerus : Hero dia. li. 6. zon . Ammi . lib . 17. as if the auncient inhabitants of Pannonia should now claime Hungarie which the Hunnes did conquer , name , and to this day keepe : and vaine was the quarrell which Masinissa made to the Carthaginians lande , Liui . lib . 34. alleadging that they ought to haue no more then Dido the Tyrian Queene enioyed , which was no more then coulde bee compassed by the hyde of an Oxe being cutt into thonges , for they had possest these landes almost seauen hundred yeares : likewise weake was the title which Antiochus the great pretended against the Aetolians and the Ionians , because these people were once subiect vnto his auncestors : & hee is well confuted of the Romanes by the lawe of prescription , that though his great grandfather , did atchiue these cities by warre yet his grandfather and father neuer enioyed them , but the cities enioyed their libertie . There be some interpreters of the lawe , which thinke the king of Fraunce by prescription to be exempted from the Emperours subiection , Fulg . Sace . lib . 1. C. Tit . 1. against whom rather adulatoriously then aptly Alciat replyeth , that no prescription of time wil hold place against the Empire : Alciat . lib . 5. de iust . for that is not true in a prescription of time , which is immemoriall , that is when no man as it may be commonly beleeued , hath eyther seene or heard the contrary : and this by the ciuill law is the space of one hundred yeares . Alexan . 5. Cons . 16. Alciat . 3. cons . 24. But here before I wil grant that such prescription will hold against a king or an Emperor , this is onely in such case where neyther possession hath beene had , nor clayme made against the said king or Emperor , for if claime only haue beene made as the kings and Queenes of England haue done in entitling themselues kings and Queenes of Fraunce , and beare in their scutchions the ensignes and armes of that kingdome , and so keep the ciuil possession of that kingdome , though they haue lost the corporall possession in such case I do not thinke that the prescription of a thousand yeares ought to preuaile : but in a case of a common person prescription will hardly run against the prince . Therefore it hath beene held in our bookes , that if the kinges tenant in Capite bee seised of an aduowson , and the church happeneth voide , and hee dyeth , and the sixe monethes doe passe , 14. H. 7. fol. 22. ( nay suppose sixe score yeares doe passe ) then an office is found , the king shal haue the presentment notwithstanding the laps before the office . But if the question be asked whether the ordinary may present by laps against the king , and if he may not , how the cure shall bee serued in the meane time betwixt the laps , and the kinges presentment : Ibid . fol. 21. It is answered by some that the ordinarie may present one who shall be remouable at the kings will , and some thinke that he shal sequester the profites of the benefice to serue the cure : but in some case the King may not surcease his time , as if the tenant for terme of life do forfeit his estate to the king , if he be not seised during his life hee may not afterward seise it , 8. H. 5. Trauers . 47. but in this case the reason is because hee can haue no other estate then he which forfeiteth , and he which commeth in of the estate of an other can haue no greater right then he had : for if a man haue land in the right of his wife , or in the right of a Church hee can not haue it otherwise then the Church or the wife hath it : 18. E. 3. 20. so if there be Lord and tenant , and the tenant alieneth in mortmaine , and the Lorde entreth , yet hee shall haue onely such right in the land as he hath in the seigniorie , notwithstanding that the statute do say , Quod proximus dominus intrabit & retinebit in feodo : 39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded vpon naturall reason , and naturalia sunt immutabilia : and the princely prescription must bee maintained bona fide . Wherefore the Duke of Sauoy which had the Cittie of Nice in pledge of the French King , did vniustly withhold that Cittie from the king being the lawful owner then , because hee had inueterate possession in the same , for by the ciuil law a man may not prescribe in a pledge : l. 9. C. de pi . act . Deci . 3. consi . 108. and Iouius is likewise angrie against the king of Fraunce himselfe for keeping Perpinianum in the like sort : Parum sincer a fide ( saith he ) veteris pacti conditionem multis cauillationibus inuoluebat : Iou . lib . 1. for it is true that Cephalus saith , in quaestione valde dubitabili non est praescriptio . Ceph . cons . 102. But surely bona fides is requisite in such matters of prescription , except it be apparant that the will of God is for the prescription : Wherefore Bellarmin confesseth , that the Turke doth lawfully possesse such thinges as hee hath taken from vs because God his will is that for our sins we should be cast out of the land , wherein we and our ancestors inhabited . Bellar . 5. contr . But he doth not possesse them bona fide , because hee can not by any speciall meane conuey them particularly to himselfe , for as Doctor Gentilis hath well obserued : An Turcae opinio latrocinantis cogitat de iusta voluntate Dei . Alb. Gentil . lib . de iu . bel . 1. 22. Aratus the Sicyonian was so strong and peremptorie for the title of prescription , that hee did not thinke it conuenient to remoue or take away from the vsurpers any thing that they haue violently taken from the owner , if they haue had possession during the space of fiftie yeares onely . Cicer . 2. de offic . Prescription hath alwayes beene of force to hinder these that had right to pursue their clayme : Wherefore Demosthenes sayth well ; Hee that hath helde an other mans landes or goodes a long time should not please himself therewith , but impute it to fortune which hath hindred the lawfull owners . Demosth . ad maca . Is any thing more to bee laughed at then that which is said of some interpreters of the law , who are not to bee laughed at , that the kingdome of Spaine may now be claimed by the Romane Emperour , by reason of his ancient imperiall right , whereas it is manifest that sithence the time of the ancient Romane Emperours , it hath beene a long time possest of the Saracens , a long time of the Spaniards .

The fifth Chapter . That by the consent of all nations consent principally maketh a lawfull mariage .

IF a man should examine the seueral rites , circumstances , and ceremonies of the diuers people of the worlde in the knitting and celebrating of mariage , he might as well number and obserue the diuerse-couloured spottes of the Chamaeleon : for euery nation hath had in this by some fatall lotte both their custome and chaunge of custome : I will onely endeuor to proue that which is conteined in my assertion , that by the consent of all nations &c. Tne definition of thinges is alway the best proofe : therefore it is good to beginne this discourse with the definition of mariage : Mariage is the lawfull coniunction of man and woman , conteining an indiuiduall societie of life , and the participation of diuine and humane right 30. q . c . nullam . , where it is said , a lawfull coniunction , nothing els is meant , but a free consent executed by the contract , which as it is the beginning of the definition , so it is the ground of the mariage , and these wordes , conteining an indiuiduall societie of life , do signifie that they shall continue foreuer together as long as they liue : Howbeit the rule of the common Law do in this sauour of the irregular Religion , Post contractum matrimonij ante carnalem copulam possit alter altero inuito religionem intrare Gazalup . in verb . nuptiae . . And for the further proofe that the ground of mariage is consent , there be three thinges by the Canon Law required to mariage Codi . ap . C. vlti . c . 27. q . 2. , Fides , Proles , and Sacramentum : Fidelitie which is put in the first place is the hart of mariage , and it springeth of consent : and therefore if a man do contract with a woman in this sort , Contraho tecum si te pro quaestu adulter andum exposueris , this is no contract of mariage , because it is contra bonum fidei , which consisteth in this , that neither of the maried couple shall break the bond of mariage , but shall faithfully and vnitedly obserue it . Likewise Progenie is an other thing that mariage requireth , and therefore it can not be a good contract of mariage , if it be made in this forme , Contraho tecum si generationem prolis euites , or si venenum sterilitatis accipias , because mariage was instituted of God for the solace of man , and the multiplication of mankind by children . Thirdly , a solemne promise is requisite in mariage : and therefore if a man do contract with a woman donec ditiorem , vel pulchriorem habeat faeminam , this is no good league of mariage , because it is contrarie to the oath of an indiuiduall societie . And so if any man in a foreine land sucking as yet the smoak of the Popes Tobaccho be a votarie to Religion , and a bondslaue to his cloyster ; for England ( the Lord be praised ) is at this day as free from Monkes , as it is from wolues . Three things are required at his handes , namely , chastitie , obedience , and the abdication of propertie , as well in landes as in goodes Gazalup . in verb . matrimon . : But that consent hath been the ground of Matrimoniall contractes , may appeare by the vsuall course and practise of nations : Wherefore Virgill exclaymeth against Romulus for marrying the Sabine women against their willes , and accompteth it rather a rape , then a mariage , Raptas sine more Sabinas : sine more , that is , contrarie to the custome of nations Virgil . 8. Aeneid . . And Propertius inueyeth against him for this more vehemently Propert . 2. Eleg . 6. : — tu criminis author , Nutritus duro Romule lacte lupae Tu rapere intactas docuisti impune Sabinas . Yea diuines Tertullian and S. Augustine haue sharpely reprooued this fact of Romulus Tertul . de de spect . et adu . val . , and Cyprian agreeth vnto them , reprehending Romulus in this maner , Vt Matrimonium facias rem concordiae per discordiam auspicaris , rapis , faerocis , fallis , & nuptiae tibi sunt rupta hospitij faedera Cypri . lib . 4. de ido . na . . By the Ciuill Law mariage may bee concluded by an oath , which beeing but a contract , it called sponsalia de futuro ff . de verb . sing . l. verbum erit . : And so in auncient time the Law seemed to be , as may appeare by these wrested words of Cydippe to Acontius : Iuro tibi sanè per mystica sacra Dianae , Me tibi venturam comitem sponsamque futuram Ouid . in epistol . . The mariage betwixt Dido and Aeneas was by consent accorded , by consent prosecuted , by consent executed , beeing witnessed and celebrated coelo tonante , and no otherwise Virgil . lib . 4. : for the Phrygian and Tyrian Lordes followed their hunting , whilest the great hound of all caried away the hare . And the mariage betwixt Martia and Cato wittily described by Lucan had no publique attestation , but the presence of Brutus onelie : Pignora nulla domus , nulli coiere propinqui , Iunguntur taciti contentique auspice Bruto Luca . lib . 2. But I would not be so vnderstood , as though I should haue this meaning , that nothing els is requisite to the perfection of mariage , but onelie the bare consent : For to explane my meaning more at large , I hold that euen by the Law of Nations , consent is onlie the efficient cause of mariage : but the materiall cause is corporum coniunctio , the formall , the bringing of the wife into the husbandes house , et aquae , e●ignis interuentus : and therefore in my opinion D. Hotoman is not iustly reprooued of D. Gentilis Alberic . Gentil . lib . 3. lectio . et epistolar . c . 6. , for holding that this deductio in domum is the formall cause of mariage , for though the Emperour say L. 15. D. de cond . et dem . vxor fuisti : deductio in domum ostendit , so that by the opinion of Gentilis , this deductio shall be onely a proofe , and argument of the mariage & no substantiall forme of it : yet by his fauour this is nether logike nor reason ; for may not an argument be drawne à causa formali , and because anima is a signe corporis animati : for a man may reason thus , animam habet : ergo est corpus animatum : therefore shall not anima be the forme of a lyuing bodie ? But if we will be ruled by Iustinian , the opinion of D. Hotoman seemeth in this to be neerer to the truth , though his learning and iudgement , if I haue any iudgement , be farre inferiour to the worthines of Gentilis : yet I acknowledge them both to be worthy men , et vitulo tu dignus & hic . But to examin the rule of the Emperour , which before I spake of , non impletur nuptiarum conditio nisi nuptiarum accedat festiuitas L. sancimus 24. C. de nup . , it seemeth that there must be necessarilie deductio in mariti domum , as may appeare by the auncient custome of the Romanes in their mariages , which is briefely glaunced at by Virgill in these wordes , Sparge marite nuces Virgil . in Bucolic . , to which there is a custome in some part of England somewhat correspondent , which hath been much vsed , namely , that the husband breaketh a cake ouer the head of the wife , as soone as she is within the threshold of his house : which custome and the like I will neither commend , nor discommend , but will onely censure them somewhat agreeably to Senecaes Augusti . lib . de ciuit . dei 6. c . 10. ex Senec . lib . de super stiti . et matrimon . censure of certaine pointes of the ciuill theologie of the Romaines , Haec omnia populus seruabit tanquam consuetudine recepta , non tanquam deo accepta . And though Gentilis presse Hotoman with this obiection out of the ciuill Law , that the mariage may be celebrated by an other , viro absente ; but not muliere absente l. 5. D. de ri . nup . : Yet that is no ordinarie course of mariage , but extraordinarie : As when the parties cannot conueniently come together , as being seuered by Sea , which hapned lately in the case of Iames king of Scots , who was maried to Anne the sister of the king of Denmarke , by a substitute or enter-deux , as Chythraeus reporteth Chytr . lib . de reb . orb . arcto . ab anno 1580. vsque an̄ 1590. Eyzinger . in thes . princip . . And the cannon Law which D. Gentilis too hastilie calleth irrationale , erroneum , caecum , auarum totum Alberie . Gentil . lib . 1. lecti . et epistolar . c . 11. will shew this difference vnto him : for it maketh two sorts of mariage , both lawfull and perfite , yet the one it tearmeth verum , the other praesumptum . Verum Matrimonium is thus defined : Which is made betwixt lawfull persons by apt wordes , all impediment of law remoued : The other is thus defined , which by the interuention of some other is celebrated betwixt lawfull persons by the arbitrage of some others , and there doth not immediatly succeede copula carnalis Gof . in tract . de contrah . . But in deed these verie wordes , duxisse vxorem , which signifieth the complementall act of mariage doth sufficiently import the necessitie of the forme of mariage aboue mentioned . The efficient , materiall , and formall causes of mariage haue been aboue shewed : The finall cause , as all will agree , is the propagation of children l. si vicin . 9. c . de nup . , and the restraint of wanton lust : If this assertion should be examined by the ciuill Law , it might receiue great disputation , varying and straying wholie from scripture , the authentike of Religion , yet wholie for consent : for the ciuill Law is so strange for consent , that it is positiuely set downe by a great Ciuilian ; That if a man doe vse too familiar acquaintance with a gentlewoman that setteth not her bodie to sale vnto him , that this is not concubinage , but mariage Modestin . in l. in liber . 24. D. de rit . nup . . An other Ciuilian holdeth , that a woman to whom one hath shewed an husbandlie affection , ought in continuance of time to be accompted his wife Papin . in l. donation . 31. D. de donat . : To whom agreeth Vlpian saying as boldlie and libidinously , Betwixt a concubine and a wife there is no difference , except the wife be a more worthy parsonage Vlpian . in l. item legato . 49. §. 1. D. de leg . 3. . Yea euen in the bodie of their Law it is set downe for a rule , that inter concubinatum et matrimonium nihil nisi affectio interest L. 3. §. 1. D. de donat . inter vir & vxor . : ingenuaque mulier domi ante testationem pro vxore habenda est L. 3. §. 1. D. de donat . inter vir & vxor . . These are the oracles of the parots and parasites of the Romane Emperours , who sought to sholder out the truth of God his word , and to varnish their owne sinnes , by the dreames of such dissolute Lawyers , who thought perhaps that they might as wel defende , as commit fornication , and concubinage : Vpon whose reuerend opinions the Pope sprinckleth the holie-water of his dispensations , yea and dispenseth for incestuous mariage , not onely with Dukes , and noble men , but as Angelus Perusinus sheweth , euen with Barbors , Tailors , and Butchers Angel . Per . in l. matrem . § filiam ad Treb . . But it is fitlie said by some , that he doth rather dissipare quàm dispensare Felin . post Doct . in C. quae ecclesiarum de constit . . And others haue been bolde to saie , that he which obteineth such dispensation , perhaps will hardlie escape in foro poli , in the court of heauen , howsoeuer hee be safe in foro Romae , in the court of Rome Arg. C. fin. de praescript . et Alci . in l. 5. pedum C. fini regund . . Howsoeuer the Canonistes , whereof the most part doe beare the cognisance of the whoore of Babylon , do auouch that by such dispensation , veritas naturae per Papam non tollitur , ( which he cannot doe though he would ) sedinumbratur : and therefore saie they , the dispensation is lawfull Arg. c . sedes de rescript . l. 3. §. permit . , an argument drawne from the owles nest , and from no place of Logike : But the Emperour Theodosius speaketh onelie of a lawfull and honest consent , in more modest tearmes , saying : Matrimonium absquè vlla pompa et celebritate nuptiarum , atquè adeo absque vllis dotaribus instrumentis firmum est , liberique ex eo suscepti iusti sunt : Heere the Emperour excludeth pompe from mariage , but not consent : Neither doth he admit concubinage to be mariage l. si donatio●um . 22. c . de nup . . It is now shewed that consent is required by the imperiall Law to the constitution or making of mariage . It shall not be amisse to inquire , whether it were necessarie or no by the auncient Law of the Romanes , which was in the time of their florishing estate , the Law almost of all the Nations of the world , as Ouids speech importeth : Gentibus est alijs tellus data limite certo Romanae spatium est vrbis , & orbis idem Ouid . 2. Pastor . . And Claudian auoucheth the same , though he liued when the Romane common weale was much empaired : Armorum legumque parens quae fundit in omnes Imperium , primiquè dedit cunabula curis Claud . 3. stil . . By the auncient Law of the Romanes , if a woman had been kept in a mans house by the space of a yeare , he might claime her as his wife Hotomanus in comment . ad duode cim tabul . : And by that Law a man might lend his wife to his friend , for the procreating of children Strabo lib . 11. Plut. in Cat . Tertul . in apologet . ; as Cato lent his wife for that purpose to Hortensius , which though Plutarch accompt fabulous : yet Appian reporteth it as true Appian lib . 2. de bel . ciui . , and Quintilian affirmeth the same Quintil . lib . 2. c . 5. . Neither is it vnlikely that it was a custome practized of the Romanes : for this lending of wiues was permitted by the Lawes of Lycurgus : and as Plutarch reporteth , it was a Law established by Numa Plut. in comparat . Lyc . et Num . : Abrutish Law doubtles , and one of the maine errors of these great common weale men , who ( as the Apostle saith ) became vaine in their thoughtes , and their foolish heart was full of darkenesse and as they regarded not to acknowledge God , so God deliuered them vp vnto a reprobate mind to doe those things which are not conuenient : D. Paul . ad Roman . 1. v. 2● & 28. Now that we haue shewed that consent is necessarie for mariage , it remaineth to bee declared how farre forth it hath beene accompted necessarie . When the Romane Empire was in her infancy and first rising , it seemeth that a verie slight consent would haue serued , as may appeare by these wordes of Suetonius , writing the life of Caligula : Mar. L. Cassio Longino , consulari collocatam abduxit , et in modum iustae vxoris propalam habuit . But of the Emperour Constantine furtiue and priuy mariages are vtterly condemned and abiudicated : l. vxor . 7. Cod . de repub . because it is against Christianitie , to which ( the Lord therefore highly be praised ) all the nations of the earth begin to open their eyes and giue their free consent . Such marriages as haue the publike testimony of the Church are greatly commended of Tertullian : Vnde sufficiam ad enarrandam foelicitatem eius matrimonij , quod ecclesia conciliat , & confirmat oblatio , & obsignatum Angeli renuntiant , pater rato habet . Tertullian lib . ad vxor . 2. And the Emperour Leo hath determined that the mariages of Christians shold be confirmed by the testimony of holy and ecclesiastical prayer , and that these marriages which are otherwise contracted should not be held for good , and Harmenopolus testifieth that by ecclesiasticall Canons it is prouided , That there should be no priuie mariages , and that no mariages should be celebrated out of the Church : Harmenop . lib . 4. c . 4. And by the common law as M. Fitzherbert saith , a woman married in a chamber shall not haue dower of her husbands lands : Fizh . N.B. 150. N. but he modestly saith , that it seemeth reasonable that shee should haue dower , M. Parkins peremptorily affirmeth , that the lawe in his time was directly to the contrarie , that the lawe was so in his time , I must take vpon M. Parkins credit : for I haue not read ( to my remembraunce ) any yeare booke which was written in his time or since , wherein that is recorded for law , as to that which M. Fitzherbert saith , that it seemeth reasonable , how could it seeme reasonable vnto him , vnlesse the mariage it selfe had seemed reasonable , & if he thought such a mariage to be good & lawfull , therein sauing reformation hee failed , for beside the authorities which immediatly before I haue cited , to proue that mariage must be celebrated in a publike place , and in publike maner , it appeareth , that in the Iewish common weale , that course was followed in the time of our sauiour , by part of a similitude which he vseth : Let your loines be girt about & your lights burning & ye your selues like vnto men that waite for their master when hee wil returne from the wedding , whereby it is manifest , that some testimony of friendes and neighbors is requisite to the celebration of mariage : Luk . c . 12. v. 35.36 . and Pope Innocent the third reporteth , that this was no new guise , nor any popes inuention , but the custome of the ancient Christian Churches , that conuentiones matrimoniorum in ecclesia promulgentur . cap . 4. extr . de cland . desp . And this promulgation is in Lumbardie called Bannum , c . cum tua extra despons . in England the Banes , or asking in the Church : & by the custome of diuers common weales , it is called manasse , the giuing of hands : in c . cum tua . 6. qui matr . accus . poss . & so is the rule of Iustinian the Emperour , who saith , that if any diuinis tactis scripturis shall sweare vnto a woman that he will marrie her , this saith he is sufficient for the contracting of marriage , but yet there must bee a publike celebration of the marriage according to the rite & solemnitie vsed in Christian churches : Iustin . Nou . 74. §. 4. so then it is in some clearenes that consent principally maketh mariage , as the grounde of that strait societie , and the celebration is as the forme rising out of this materiall cause , which maketh it to bee knowne , and to bee publikely notified and ratified : for as to the age of the partie , who is to bee marryed , that hee shoulde bee plenis nubilis annis , or that hee should haue power of ingendring , vt iusto accedat robur amori , or that they may bee equall in degree , because dulce iugum paritas , these doe not make mariage , but cause it to bee a more conuenient mariage , but the consent that maketh mariage must be ouert and expresse : for though the parties will , doe appeare in a secret will , and which may onely be proued by circumstances , yet consent is onely verified in an expresse & vnfolded wil : wherefore D . Baldus saith wel , that a neutrall consent , which is not demonstrated by word , nor by deed , is not correspondent to the actes of men , neyther doth it make them essentially perfect . Now if any man doubt whether the consent of the parties onely do knit the marriage , or the fathers consent be necessarie , as to that point the ciuill lawe , which in this matter all nations follow for the reasonablenesse of it , standeth thus . Eorum qui in potestate patris sunt sine voluntate eius matrimonia iure non contrahuntur , sed contracta non soluuntur : contemplatio enim publicae vtilitatis ( that is to fill the Citie or common weale with people ) priuatorum commodis praefertur : Pant . l. 2. senten . And againe , Si forte pater concordans matrimonium , that is , a fit mariage ) & forte liberis subnixum ( that is , confirmed by procreation of children ) velit dissoluere , et certo iure patriae potestatis turbare , sic erit res tractanda , vt patri persuadeatur , ne acerbe patriam potestatem exerceat . lib . 1. de lib . exh .

The sixth Chapter . That by the practise of all nations Democracie hath beene bette downe , and Monarchie established .

DEmocracie I haue alwaies taken contrarie to the auncient diuision of Monarchie , aristocracie , &c. to be no forme of a common weale , if it bee properly taken for the equall sway of the people without any superioritie : for the heele can not stand in place of the head , vnlesse the bodie be destroyed and the anatomie monstrous : it is against the nature of the people to beare rule : for they are as vnfitte for regiment , as a mad man to giue counsaile , which Anacharsis well perceiuing did laugh at the assemblies and counsels of the Athenians , because they did commit the summe of their affaires to the peoples furie : and Xenophon writeth thus of the Athenian , that is , his owne common weale : I can not allowe the state of the Athenians because they embrace that forme of common weale , in which wicked and lewde persons doe more flourish then good men and innocent : Xenoph . in lib . de repub . Atheni . which commonweale notwithstanding Bodinus calleth vntruely omnium popularium laudatissimam , Plutarch as vntruely , omnium minime vituperandam , but if it be true that they say , in how miserable estate are other popular common weales , all which ( the Romane commonweale onely excepted ) are farre short of the Athenian estate : and Machiauel did abuse his owne pen , and the patience of others , in one place preferring Democracy before al other kinds of gouernment , Machia . in obseru . in Liui . yet in another place , shewing how he wold haue Italie restored to the ancient glorie and excellencie , he sheweth that that can not be done but by a monarchie , and onely by the Popes monarchie , Machiauel . in lib . de princip . c . 9. in this point accomplishing the part rather of a magician , then a mathematicke , wishing for that which the deuill would desirously effect , but imagining that which in truth can neuer be : yet again he departeth from this opinion , when hee preferreth the Venetian common-weale before al commonweales . Machiau . in Liui . Plato was wont to call Democracy , Nundinas populares , the peoples fayre : wherein euery thing was sold for money . Aristotle disagreeing from him in many things , yet he agreeth with him in this , vtterly condemning Democracie , vsing not onely strong reasons of his owne , but Homers authority for it {αβγδ} , and Maximus Tyrius a worthy man in his time , Maxim . Tyri . orat . 3. that hee might conuince Democracie to be a most pernicious euil , bringeth for proofe herof , the examples of the Athenians , the Carthaginians , the Siracusans , and the Ephesians : & if a man should seriously respect the brittle dependance of things vpon the peoples braines , he shall easily and clearely perceiue , that whosoeuer shal but ground his owne estate , much lesse the estate of the common weale vpon the peoples fantasies , domum ex luto facit , & findeth nothing more certain then vncertain accidents , & if a man should compare honour to vulgar reputation , he might as well compare a course packthreed to the fine twist of the silkeworme , & a garland of iuie to a crown of gold : to be straight way an honest man , because the multitude commend him , is no more necessarie then that a man should be euill , because few are like vnto him : I wold rather like a contrary argument : he is liked of the most , therfore he is not to be followed of the best : who was more fauoured by the gretest part of the Troians thē the strumpet Helena ? she that was recouered & recaried forsooth for her excellent beautie by so many thousand shippes , by so many valiant & vnconquered captains , after the downfal of a goodly citie , after the flames of so many wars , after so many spoiles , and homicides . The people did wonder at that paragon , as hauing excellent felicitie to be caried home in so glorious a triumph , & to be transported from Troy to Greece , from a floud of hony to a sea of nectar , being the blazing starre to that famous warre which the brauest soldiers doe at this day admire : At Capis & quorum melior sententia menti , what thought they of this popular miracle ? what thought Eneas ? that she was Troiae & patriae communis erinnis : what thought Antenor , a wise , iust , and vertuous nobleman , Antenor censet belli praecidere causam . But if euery thing that the common people approueth be commendable , what is then discommendable ? euen that which deserueth most commendation , namely vertue it selfe . When one tolde Antisthenes that the most part liked him , hee demaunded of him incontinent for what vice they liked him , as if it were impossible that vertue should please the common people . Anacharsis thought it verie inconuenient that artificers should contend in cunning , and these that had no arte should bee iudges of their cunning : by the same reason they that are not vertuous , can not iudge of them that be vertuous , & if they can not iudge of them , how can they with conscience praise them : and if not them , how can they with safe conscience praise others . Is it not therefore a madnes to gape for their suffrage , which are incompetent iudges , and to care for their controlment which are vnsensible censors . Phocion liked nothing that the common people liked . Seneca thinketh that none can please the people to whom vertue is pleasant . Senec . epist. 29. The multitude haue this prouerbe verie rife in their mouthes ( too many to bee good ) and yet in this glasse they can not see themselues , as they likewise said ( omnia plena stultorum ) forgetting themselues .

This beast of many heades hath a threeforked tongue : with the one part it tickleth the eares of them whom they flatter : with the other it licketh their wounds : with the last , and sharpest it pricketh their hearts : with the first they flatter them , lulling their sences with faire wordes , and with soft speeches sliding into the bosome by forgeries and fables : with the other they licke their woundes , excusing their crimes , extenuating their faultes , cooling and calming their rage , that are incensed against them : with the third they pricke : for let the popular idoll be once crushed , none will sooner tread vpon him then the people ; & if perhaps they weepe for him in this especially is the prouerbe verified , lachryma nihil citiùs arescit : They deale with their idols as the diuell dealeth with witches : when they are in prison they leaue them : Nay , for the most part none are more proan and readie to accuse when time serueth , then these adulatorious excusers , Quo teneam vultum mutantem protea nodo ? The wayward people may be iustly compared to a bundell of thornes , which will beare vp a great man , but will pricke him if he leane or lie vpon it : They are like the windes , which Neptune trussed vp , and deliuered in a bagge to Vlisses Ouid . in Metamorph . , beeing sure as long as the mouth of the bagge is shut , but if there be neuer so little a chinke or riffe , they quicklie glaunce out , one raunging one way , an other some other way , like to Samsons foxes with fire-brandes at their tayles . What a frenzie is it therfore for any to plant his credit vpon such restles braines : as if a man should endeuour to make the sea solid , to make mountaines plaine , to build a castle in the aire , and to measure a flies foote : for these blind puppies , follies naturall children , melius , peius , profit , obsit , nihil vident nisi quod lubet Terenti . . But who list to know the maners and practizes of the people more fully , let him bend the right eye of his mind to historicall contemplation , then he may see Verres accused and conuicted of diuers villanies , of notable spoyles and robberies , of a thousand excessiue briberies at the least , & false iudgements in number more : yet by plebiscite or popular determination to be quitted and freed , but by the sentence of the same Iudges , Rutilius , Metellus , Coriolanus , Scipio the elder , Affrican , and Cicero , men of rare vertues , are confined and banished out of Rome : innocent Hermodorus is thrust out of Ephesus , Aristides chased out of Athens , Themistocles dieth in exile , Socrates endeth his life in prison : so vniust a measure to good deserts is the fantasie of the multitude . Phocion a mirror of integritie , the glorie of his time , and the honour of Athens , who was fortie and fiue times chosen by the earnest desire of the people to be their chiefe Captaine , which he administred to the great good of that estate : yet in the end they condemned him to death Plut. in Phoci . . But Antiphon that vicious varlet , and steigne of Athens , was by the people absolued and acquired , as altogether innocent : which absolution Demosthenes not brooking , did so hotely pursue the matter , that he caused him afterward to be condemned , and put to death by the decree of the Areopagites Plut. in Demosth . . And alas , what praise can there be giuen to the people for any action commenced and caried by them ? did Rome florish by popular effectes ? no , Salust saith that the credit therof belonged to some fewe excellent gouernors Salust in princip . Catil . . Liuie saith , Sub vmbra Scipionis vrbem terrarum dominam latere , nutus eius pro decretis patrum , pro populi iussis este : Vnder the shadow of Scipio the Citie , the Ladie of the world did cabbon , his beckes were the decrees of the Senate , the commaundes of the people Liui . lib . 30. . So did the Thebane state a long time florish , but it was by the wisedome of Pelopidas , Epamondas , and other speciall men . So the Athenians hauing lost their prudent gouernor Pericles , they lost the true and essentiall forme of their Citie , which being as a ship in the middest of the sea , without mast and rudder , whilest one casteth the anchor , another spreadeth the sayle , one keepeth the hauen , an other mooueth the sterne , all goeth sodainlie to wracke Polyb . lib . 6. . Foolish were the Argentinians , Lindouians , they of Seene , they of Genoway , they of Florence , who seeking to settle popular gouernement , did pluck vp from the roote their auncient nobilitie , and hauing made three degrees of Citizens : some great , some meane , some vulgar ; They of the two last rankes did vtterlie subuert the gouernement of the first , and then contending amongest themselues , did burne in such furie one against an other , that streames of bloud did run in the streetes , and the state being now couched , and deuolued to the dregges of the people , they neuer left of killing and slaughtering , till by the aduise of the Pope , and the neighbour-cities , they had wholie submitted themselues to a straunge gouernour Anton in . et Machiauel . in hist Flor . . Thus in the end they came to a Monarchicall estate . And these Nations which haue no resemblance of a citie in them , do create a Duke or Capitaine , who may gouerne the rest , and prescribe Law vnto them : as in Guzula a region of Affrike , and in the borders of the kingdome of Fez : They that dwell neare the mountaine of Maguano , if they perceiue any straunger passing by , who excelleth in wisedome , they doe entreat him , or enforce him if entreatie will not serue , to deuise Lawes for them Leo Afer . in lib . de reb . Affric . . The Romanes in all their daungerous accidents did acknowledge the gouernement of one to be the best , and therefore chose a Dictator , whose gouernement Appian pretilie calleth regnum negatiuum , either because it denied a regall power onely in shew , or because he had authoritie to denie that which the rest had affirmed . Trepidi patres ( saith Liuie ) ad summum auxilium decurrunt , dictatorem dici placuit Liui . lib . 6. : And againe he saith , that when Hanniball did molest Italy : ad dictatorem dicendum remedium iamdiu desideratum ciuitas confugit Liui . lib . 22. , and such was the reuerence of the Dictator , that , as the same Liuy saith , Dictatoris edictum pro numine semper obseruatum Liui . lib . 6. . And Appius being Consull , giueth aduise to create a Dictator for the brideling of the rage of the people , affirming minas esse consulum , non imperium , vbi ad eos qui vnà peccauerunt prouocare liceat , agedum Dictatorem à quo prouocatio non est , creemus ( Liui . lib . 2. . But Monarchie hath been imbraced by the people of all Nations , Democracie reiected : as namely , by the Medes , Persians , Aegyptians , Parthians , Macedonians , Arabians Indians , Aethiopians , Scythians , Tartarians , Turkes , Danes , French , Moscouites , Polonians , Britanes , Affricanes , and Perusians . The name of a king saith Salust , is primum in terris . By scripture it appeareth , that kings were ordeined of God : for it is said in Deuteronomie : Thou shalt make him king ouer thee , whom the Lord thy God shall chuse : one from among thy brethren shalt thou make King ouer thee , and thou maiest not set a straunger ouer thee , which is not of thy brethren Deuteron . 17. vers . 15. . And it is said of Moses : He was in Israel as King when the heades of the people , and tribes of Israel were gathered together Deuteronom . 3● . ver . 5. . And aftere the returne of the Hebrewes from Babylon , where they were captiues , to their auncient countrie of Palestine , they did obey the kinges of Persia , Syria , or Aegypt , till Iudas Machabeus an Asmonite did recoyle from Antiochus the great king of Syria , and transferred the high-pristhood and kingdome into his owne familie . And as all Nations haue imbraced Monarchie , so the wisest men in all nations haue approoued it : As Homer Homer . lib . Iliad . 1. , Herodotus Herodot . lib . 5. , Plato Plat . in politic . , Aristotle Lib . vlt . Metaphisic . , Xenophon Xenoph . in cyrop . , Plutarch , Philo Plut. in lib . de creati . Regis . , Apollonius Thyanaeus Philostratus . , S. Ierom , S. Cyprian , Maximus Tyrius Maxim . Tyri . in orat . , and Bartolus the deepe Ciuilian Bartol . in tractat . de Regim . ciuit . nu . 10. , Lucan Luca . lib . 1. et 2. , Aquinas Aquinas in lib . de princip . , Erasmus Erasm . in lib . de instit . princip . , Tacitus , S. Augustin D. Augustin . lib . 5. de ciuit . dei . c . 1. , and S. Ambrose whose particular and plenarie assertions I omit , because I hasten now to an other matter which hath not been so much discoursed of as this .

The seuenth Chapter . Of the Law and Iustice of Armes , of Leagues , of Embassages , and denouncing of Warre , of Truce , of Safeconduct , Captiues , Hostages , Stratagems , and Conquestes , according to the Law of Nations .

IN purposing to speake at large of the Law of Armes , and the members and parcels thereof , I doe respect the good of the Ciuilian , who in these matters is verie often employed : And of the professors of common Law , who shall not doe amisse , in considering of these thinges that shall be deliuered , for the more full opening and explaning of the Statute of 13. Rich . 2. cap . 2. which is thus : To the Constable and Marshall it belongeth to haue conusans and knowledge of contractes , touching feates of Armes , and of warre ; out of the Realme , and also of such thinges as touch Armes or Warre within the Realme , which can not be determined , nor discussed by the Common Law &c. For the better entring into this discourse , I thinke it best to begin with the definition of Warre , which may be thus : Warre is a iust contention of men armed for a publike cause , for though manie thinges be done in warre without weapons , yet mere is no warre without the furniture of weapons , and there is nothing in warre which doth not lie hidden as it were vnder the safegard of Armes , and which may not be referred to the same : And it must be a publike contention , because warre is not the quarrelling fight and enmitie of priuate men : for warre is therefore called Duellum , because it is the contention of two equall persons Varr . lib . 6. de lingu . lati . : And therefore the Syrians ( as I am infourmed ) doe thus translate the wordes of our Sauiour : What king goeth to warre against an other king Luc . 14. , in this forme : What king goeth to warre against his fellow king : that is an other king equall vnto him : Therefore Lipsius his definition is to bee disliked , in that he defineth , Warre to bee force and armes against a straunge Prince or people Lipsi . in polit . : for by that hee maketh the outrage and violence of priuate men and pyrates to bee warre : for warre is a iust contention , and by this woord ( iust ) excursions and depraedations are excluded : Wherefore Scipio did accompt them robbers and ringleaders to theefes , which did deale by such kind of spoyle and pillage Liui . lib . 28.40.41 . Flor . 2. . And Liuie censureth the Ligurians rather to be robbers then iust enemies , because beeing poore at home , they did inuade the dominions of others , and were more easilie ouercome then founde out : Neither did they obserue the Law of Armes , because they did slaie captiues , and cruellie dismember them . And Iouius speaking of the truce betwixt the Turkes and Hungarians saith , that by an auncient custome , they did make small skirmishes and extraordinarie incursions vpon the borders , if they were not resisted by the preparation of Ordinance planted against their walles Ioui . lib . 36. . Warre was first brought in by necessiitie , for in that decisions of Courtes of Law , and the determining of controuersies by their rules , could not be betwixt two straunge Princes of aequall power , vnlesse they should willinglie agree to such an order , because they haue no superior nor ordinarie Iudge , but are supreme , and publike persons : therefore the iudgement of armes is necessarie because such warre ( saith Demosthenes ) is against them which can not bee brideled by Law Demosth . de Cherson . ; But processe of suit is onelie for them which are subiect : For as there be two kindes of contention ; one by triall of Law ; the other by triall of Armes : so we may not vse the later , if we may haue helpe by the former . This was the cause that the Romanes were wont to mooue them , with whom they dealt , that their quarrels might be ended by mutuall debating , and course of iudgement , rather then by blowes , and weapons . And so the Ardeates , and Aricines , the Neapolitanes , and Nolanes did referre their controuersies to the iudgement of the Romanes Liui . 3. Dionys . vit . Cicer . 1. de offic . . So the Samnites did prouoke the Romanes to debate their common cause betwixt their common friendes Liui . lib . 8. . And Archidamus said , that it was not lawfull to wage battaile against them which did offer themselues to bee ordered by peaceable iudgement : Thucid . l. 1. and Cyrus who is proposed as a patterne of an excellent prince , by Xenophon , a principall Philosopher and very wise Gouernor maketh the king of the Indians an Vmpier betwixt himselfe , and the Monarch of Assiria : Xenoph . Cyropaed . 2. therfore they which flie from this peaceable kind of triall , which is nothing els but a disseptation of of words and reasons do digresse from iustice , humanity , & commendable examples : but it is good to bee prouided for armes , when the parties will not tollerate indifferent hearing of the cause , which the poets seeme to haue signified when they feygned Chiron the Centaure , whose vpper part did resemble a man , the inferior part a horse , to be tutor to Achilles , Statius Achilles lib . 1. that they might giue vs to vnderstand , that when a controuersie could not be moderated by reason , the strength of the horse should be vsed : for against them , which will not be ruled by equitie and reason , force is not vniust . But ( as Scipio said a gouernor in warr ought like a Phisitian to vse iron and launcing in the last place ; Plut. in apophth . And as to the bearing of armes , it is certaine & manifest , that priuate men , and people subiect , and inferiour princes , haue no such necessitie to make triall by battaile , because they may pursue their right by other lawfull meanes in some court of iustice : neither haue priuate men any authority to assemble a multitude . It is Pl●●●es law , Si quis prinatim sine publico scitu pacem b●●●mue fecerit capital esto : Plut. lib . vlt . de legi . If any man priuately without publike knowledge doe make warre or peace let it be capitall vnto him : for it belongeth to the power of the supreme gouernor to make warre or peace : Deci . cong . 20. and therefore by the law of Iulius it was high treason for any to leuie armes without the consent or command of the prince , l. 3. ad l. Iu . ma . & the Romanes did thinke it conuenient to yeeld such a man into the hands of them whom hee had prouoked by weapons : Appian . & Plut. in cat . mi. and vppon such occasion they demanded the person of Annibal : and so the Philistines vpon like cause demaunded Sampson , to whome the Iewes yeelded him ; Iudic . 15. and Cato thought that the army was to be recalled , & Caesar to bee yeelded vp into the enemies power , because he maintained warre in Fraunce without the warrant of the people , in whose handes the commandement of warre and peace was : Liui . lib . 4. 16. 18. 19. but without vrgent cause and lawfull authoritie there should be no taking of armes or raysing of multitude , & therfore it is well prouided by the statutes of the two soueraigne Queenes & sisters , Marie & Elizabeth of England : That no man without authoritie , by ringing of any bell , or by sounding of any drumme , trumpet or horne , or any other instrument , by the fiering of any beacon , or any other instrument , &c. with force and armes shall alter any lawes or statutes . 1. Mari . parliam . 1. c . 12. 1. Eliz . c . 7. And in ancient times kings had the supremacie ouer other , of commaunding of commencing war , and of m●●tering men , as appeareth by the sacred historie ●et sometime vpon a great or necessarie cause , 1. Reg . cap . 8 as if there be daunger in delay , or the soueraigne prince be absent , warre may be vndertaken without the commaundement of the prince , if it be vpon occasion of iust defence , which by the law of nature is graunted to euery one , and there is an excellent example to this purpose in the Romane history of L. Pinarius , who was the captain of a garrison at Enna in Sicely , who when he did foresee the reuolt & defection of the citizens of Enna to the Carthaginians , and hee could not conueniently send ambassadors to the Consul Marcellus , though he were not far from thence , suddenly he did kil all the citizens , by which act Enna was still reteigned for the Romanes , & Marcellus did not disallow the deed : Liui . lib . 24. therefore Cicero commendeth the enterprise of Octauius Caesar , who not expecting the decree of the Senate , did of his own head vndertake war against Antonius : for the time of consultation was not yet come , but if he had thē omitted the time of battel , he did well foresee that the common weale being oppressed , nothing could bee decreed by Senate : Cice . Philip . pic . 8. and the Senate did after allow by publike authority the war vndertaken by Octauius of his owne priuate aduise : Cic . Philip . 5. so Scipio Nasica did deserue exceeding commendation , who did voluntarily offer himself a captain to all good Romans for the oppressing of Ti . Gracchus , together with his treacherous confederates . Valeri . Maxi . lib . 3. c . 1 Appi . de bel . ciui . lib . 1. For it is necessarie ( as Cicero sayth ) in such perturbation and tumult rather to obey times then customes : for in peace wee must follow custome , in warre profite : but nowe as to the iustice of warres , lib . 2. de rep c . 5. if bellum haue his denomination a belluis , as some doe imagine , it should seeme to be vndecent and discrepant from the nature of man . Heare of that matter Seneca : Wee punish homicides and particular murders , why doe wee not punish warres and the glorious sinne of people slaughtered . Couetousnes & crueltie know no measure : By Senate-counsell and popular assent bloody actions are executed and publikely commaunded , which are priuately forbidden . Senec . epist. 96. Men , a mild kind of creature , are not ashamed to boast of bloudshed , when as dumbe and reasonlesse creatures haue peace amongst themselues . Cuia . Critic . not . 1. &c. 2. de cla . desp . Lipsi . 2. mili . Rom. 12. And at the first sight this is a great argument , that if dumb creatures , which can not debate the causes of their anger haue peace amongst themselues , how much more ought men to doe the like , vnlesse they will bemore beasts then the beasts themselues . Cyprian hath the like saying : Homecide when particular men doe it is accompted a fault : when it is publikely done it is accounted a vertue the greatnes of crueltie not the reason of innocencie doeth purchase impunitie and pardon . And fitly to the same purpose , though not purposely for the same : Lawes haue agreed to sinnes , and that is admitted to bee lawfully which is publike : Cypr . 2. ep . 2 And Seneca againe , Small theftes are punished , great are caried in triumph . Senec . ep . 88 Tertullian saith , that wrong is proper to warre , and as farre as his authoritie stretcheth , prohibiteth battaile to Christians : Tertullia . adu . Iud. but sithence the time of Tertullian , these opinions haue beene confuted of Diuines , Ciuilians , and Philosophers : for warre is according to lawe though many mischeefes do steigne it : for there doeth ensue good of it when rebels are reduced to obedience , and when peace is accorded : and that whose end is good , is also good it selfe : for the end of war is peace , to which and to common equitie without bloudshed , and these iniuries of warre men do seldome attain . Neither doth Seneca disalow all warres : for he praiseth the warres of Hercules : Senec . lib . 1. de benefi . as to Tertullians saying , hee did speak it vpon the consideration of such things which are vniust , and are often done in warre , not impeaching that which is vsually done of them that be iust : to Lactantius & Cyprian answere may be made after the same sort . Notwithstanding I would not haue this poyson of war admitted into any commonweale , vnlesse it be to expell an other poison : nor this furie to be let loose , vnlesse it bee to coole the furie of others , or vpon like necessitie . But now let vs sift the precedent definition of warre more narrowly , and consider how warre may bee iustly maintained on both sides : which both Diuines & Ciuilians Conua . reg . peccat . §. 18. Soto . 5. de iust . q . 1. 7. view . relect . haue thus expounded , saying that it may bee truely and verily iust on the one side , & on the other by ignorance , as by the voice of God the Iewes did iustly moue warre against the Cananites , and the Cananites did iustly resist the Iewes , not knowing God his will and defending themselues : and therefore it was well said of Pope Pius the second to the embassadors of the king of Hungarie , who did speake against the Emperour , that he thought the king of Hungarie would not depart from right and reason , and hee knew likewise that the Emperour was a louer of iustice , howsoeuer nowe they did discent by warre , and that neither of them thought that hee had an vniust cause of warre . Com . Pij . 2. lib . 3. Cicero speaketh fittely to this purpose of the faction of Caesar and Pompey : There was some obscuritie , there was variance betwixt two excellent Captaines : many doubted what was the best , many what was expedient for them , many what was decent , some , what was lawfull : Cice . pro . Marcel . but the Ciuil law doth attribute the rightes of warre vnto both parties , the things that be possessed by warre it giueth to the possessor : captiues it maketh bondseruants to both . Now it is conuenient to discend into a more particular consideration of the causes of warre , which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches . To assault thy neighbours by warre ( saith Augustine ) and to vexe people that doe thee no hurt through an ambitious desire , what is it els but a great robberie . D. August . in . 4. de ciuitat . Dei . Therefore the saying of the Barbarian was as barbarous as himselfe : That is most iust in prosperous fortune , which is most forcible , and that it belongeth to a master of a familie to keepe his own but to a king to contend for that which other men possesse . But Attila which did not attend any cause or occasion of warre , did therefore worthely deserue the hatred of all men as being an enemie to all men : Ior . de or . but the Turkes do otherwise , Tacit. Anali . 15. who most commonly pretend a cause of warfare : and therfore Soliman when hee endeuoured to winne the kingdome of Cyprus from the Venetians beganne to consider what pretenses he might make for the taking of armes , because it is not ( as one saith ) the custome of the Ottomans vpon a rage or heate of mind to enterprise warre . Natal . com . lib . 1. It is a beastly part hauing receiued no iniurie , to commit slaughters of men , and depopulations of cities and countries : therefore princes many times pretende causes of war , where in truth there is no cause . And Moyses sought for a good cause of quarrelling with the Emorites , though hee had a cause absolutely iust , namely the commandement of God . For when by vertue of the same commandement he was to make warre against the Emorites , & vtterly to destroy them , hee sent messengers to their king which might signifie thus much : I will passe by thy land , we will not turne into thy field nor vineyard , nor drinke the water of thy well , wee will keepe the right path vntill we be past thy borders . Therefore let there be a cause of warre , and let it be no small cause : for parum a nihilo vix distat . And as Propertius saith : Frangit & attollit vires in milite causa , Quae , nisi iusta subest , excutit arma pudor .

Iust cause of warre is the defence of our countrie , our selues , our friends , our fellowes , & goods . A defensiue warre is grounded vpon the lawe of Nature , therefore C. Pontius the Captaine of the Samnites said well , That warre was iust vnto them , to whom it was necessarie , and that their armes are honest which haue no hope of safetie but in weapons . Likewise it is a iust warre which is taken in hand for the recouerie of thinges wrongfully , and by force taken from vs by our enemies : c . iustum . q . 2 August . q . 10. sup . Iosu . lib . 2. or that the authors of the iniurie , at least , may be yeelded vp into our hands to bee punished , if they did it not by publike decree , but by priuate malice : therfore Dauid after the death of Saule did maintain warre against Isboseth the sonne of Saule , who did go about to vsurpe the kingdome of Israel , which God by Samuel the Prophet had giuen vnto Dauid : 2. Reg . c . 2. and Romulus did therefore fight against the Sabines , because their Dictator Cluitius would not restore the things taken from the Romanes by violence , nor yeelde vp into his handes them that did wronge . Dionis . Halicarn . lib . 3. And the reuenge of an iniurie most despightfully done , is likewise a good cause of warre : Therefore Dauid did iustly wage battell against the King of the Ammonites for the disgrace and abuse offered to his ambassadors : 2. Regu . c . 20 & duob . sequenti . and that prince hath iust cause of warre , who pursueth by armes rebelles and such as swarue from obedience : c . auctor . it . vs. quaesti . 6. cap . scir . 103. quaest. 8. for great iniury is done to God , and to the prince , when his subiectes will not be ordered , nor ruled by his authoritie : for there is no power but of God , and he that resisteth power as S. Paul saith , resisteth the ordinance of God Ep. ad Roman . c . 13. , and the iniurie done to a soueraigne Magistrate , is done vnto God : Who said vnto Samuell , of whom the people craued an other king : They haue not cast off thee , but me , that I may not reigne ouer them 1. Reg . c . 8. . And Dauid did wage battaile against Seba the sonne of Bochri , who solicited the people to reuolt from Dauid to him 2. Reg . c . 20. . But because a Rebell may not properlie be called an enemie , when any such armes are borne against rebels , it is not to be called a warre , but an exercise of princelie iurisdiction , vpon traiterous and disloiall persons Innocent . in c . olim 1. de resti . sp . et l. , which was well declared by Pompey , in iustifying the warre mainteined by the Senate against Caesar , and his complices Lucan . lib . 2. : — nequè enim ista vocari Praelia iust a decet , patriae sed vindicis iram . And this is confirmed by Ciceroes opinion , who did not think it conuenient to send Embassadors to Anthonie , not to intreat him by wordes , but that it were meete to enforce him by armes to raise his siege from Mutina : for he said that they ●ad not now to deale with Anniball an enemie to their common weale , but with a rebellious Citizen Cicer . philipp . 5. . And the said Cicero writeth also to Plancus , that peace ought not to be concluded with the Anthonians , who had besieged Brutus at Mutina , calling them shamefull theefes , which either ought to craue peace , laying aside their Armour , or if they will persist in their furie to obteine it by fight , not by composition Cicer . lib . 10. epistol . episto . 6. : Wherefore it was vnaduisedly done by the late Earle of Essex , in admitting anie article of composition with Tyrone , and namelie for the restitution of such landes and possessions , to which the Rebels might pretende right before the rebellion : for so vpon euery iudgement giuen against them , they would presentlie haue retourned to weapons . And this slipperie reuolution of titles , might perhappes haue stirred them to Armes , who were in peaceable possession of these lands : so that this would haue been nothing else , but a cutting off of one of the heads of Hydra , that an other might growe : for surelie there will alwayes bee some cause and occasion of tumult , if men may bringe into question , antiqua et antiquata . The Romanes would graunt nothinge at all to Rebelles , beecause theyr course was to bee sterne to the proude , and rebels in that they are rebels are proude in the highest degree : Neither ought anie of their kinred to regarde them , but to bee of Seneca his resolution : Si arma quis patriae meae inferret , quidquid de me meruerat perdidit , & referre illi gratiam scelus haberetur Senec . lib . vlt . de beni . fi . . And exccellent is the saying of Fredericke the second to the Fauentines : Qui dum potest delinquit , dignus est vt quantum potest puniatur Sigoni . lib . 18. de re . Itali . . But to returne to the causes of Warre ; There be some causes of making warre , which wee referre to God , as commaunding warre ; as when the Iewes did referre to God the cause of the warre mooued against the Cananites Deut . 34.4 . Exod . 23.29 . Num . 33.51 . Deut . 20.16.17.18 . . And God denounceth irreconciliable warre against the Amalekites , and he chargeth his people with perpetuall enmitie against them Exod . 17. . That kinde of Warre ( saith Augustine is without all doubt iust , which God doth commaunde , with whom there is no iniquitie , and who knoweth what ought to bee done to euerie man , in which action the armie is not so much to bee accompted the authour of warre , as the minister thereof August . in Ios . q . 10. . And so the Prophet Esaie said , that it was not necessarie for king Ezechias to aunsweare anie thinge to the Embassadours of the Philistines of the Israelites right in Palestine , but onelie this , That God would haue that land to bee his peoples Esai . 15. : Naie , the verie Heathen as the Aethiopians did vndertake euerie warre by the Oracle of Iupiter Herodot . lib . 2. . And the Spartanes by lottes and miracles , were mooued to make warre and to fight with the Argiues Xenoph . 4. Graec . . And Aeneas commeth into Italie to maintaine warre by destinies , and Oracles Nat. com . 6. 14. . And the Turkes doe alwaies pretende this cause of their warre , that it is the commaundement of Mahomet , that they should persecute men of diuerse Religion : therefore they and the Persians , the one seeming haereticall to the other , are in continuall warre . And the late king of Spaine Phillip , did pretende this defence of his warres ( as some testifie ) that they were against Infidels , and Heretikes Ferrat . de inimic . §. 7. et 17. . Yet a Doctor of his owne sect Baltasar Ayala thinketh that warre is not to be leuied against Infidels , because they be Infidels , although the Emperor or Pope should commaund it : for their infidelitie doth not depriue them of these demesnes , Baltas . Ayal . lib . 1. de iur . bel . c . 2. which they haue by the Law of Nations : for the earth was not giuen to the faithfull onelie , but to euery reasonable creature : for the earth is the Lordes , and the fulnes thereof , the round world and whosoeuer dwell therein Genes . c . 1. Exod . 9.29 . Psal . 24.1 . . And the Lord maketh his Sunne to shine both vpon the good and the bad Math . 5. in fin. et c . 6. in princip . , and though Nabuchadnezer were an Infidell , yet the Lord did giue vnto him kingdome and principalitie Ierem . 27.6 . . But in grounding warre vpon diuine causes , it is good to be certaine of God his will , and not to credit the aequiuocall prophecies and fantasies of men light-headed and possest of fierie spirits , fit to kindle tumults and vprores : for the warrants of such men are nothing els , but the wracke of a number of men . Such was the oracle of that Scot vnto his king , consulting with him of warre against England , Ibis , redibis , nunquam in bello moriturus , which fell out afterward to be true , being thus distinguished : Ibis , redibis nunquam in bello moriturus . Such was the warrant of the Eremit , moouing the imperiall armie to fight against the Ligurians Carol . Sigon in vit . Andr. Anti . . Such were the fond prophecies of Ball , or according to some Chronicles Wall a priest , who stirred vp a rebellious armie in the time of king Richard the second I. Stow in Rich . 2. . But from warres which displaie the banner , I will passe to leagues which wrap it vp : 2. As warres haue been by the Law of Nations mainteined , so leagues haue been concluded : for as Cicero saith : Ita bellum suscipiatur vt nihil aliud quàm pax quaesita videatur Cicer . 1. offic . . Such was the opinion of S. Augustine , as appeareth by the Canon Law : Pacem habere debet voluntas , bellum necessitas : non enim pax quaeritur , vt bellum excitetur , sed bellum geritur vt pax acquiratur C. 3. 23. q . 1. . And that is expedient for the Conqueror , according to the saying of Euripides : Pacem reduci velle victoria expedit , victo necesse est . But the Conqueror ought to be of that power , that he may be able to make perpetuall peace : for it is one of the naturall properties of peace to be perpetuall : For such was the forme of peace , which the Romanes concluded : Romanis & Latinorum populis pax esto , dum coelum et terra stationem eandem obtinent Dionys . Halicarnas . lib 6. . And so the Romane Emperour , and the Persian king did establish peace sine termino Procop . 1. lib . de bel . Pers . , in concluding peace , publike profit must be especially regarded ; which Hanniball therefore tearmed vinculum maximum Liui . 36. : and before him Demosthenes tearmed it so Demosth . ad Ep. Phi . . And sometime priuate profite is respected , when it is a mean or waie to publike profite : Wherefore Duaren saith pleasantly and fitlie : We see verie often , that as of a comedie , so of a warre , the finall conclusion is a mariage Duar . c . 3. de rit . nup . : But it is good to make peace , so that there be no feare of future tumult , and vnquietnes : Therefore Lentulus his counsaile was good against the Carthaginians : Quoniam perfidiam non possumus tollere , ante omnia debilitemus potentiam Appia . in bel . punic . . And Cato of this matter speaketh to the Spaniardes : Id ne fiat vno modo caueri potest , si effectum erit ne possitis rebellare Liui . 34. . And Iphicrates doth well aunswere the Lacedaemonians , promising all faithfulnes , and all possible securitie , that he could not rest vpon anie other faith , or other securitie then this , that it should bee apparent vnto him , that they could not doe anie hurt , though they would . The reason of this sure and warie dealing with enemies , Saint Ierom wittilie sheweth : Quis vnquam mortalium iuxta viperam securos somnos capit , quae etsi non percutiat , certè sollicitat : Securius igitur est perire non posse , quàm iuxta periculum non perijsse Hieron . ep . 47. : Who did euer rest quietly , sleeping neare to a Viper , which though shee doe not stinge , yet shee doth vexe ? It is therefore more secure to be able to auoide danger , then not to haue perished , where there is hazard of perishing . The effects of peace concluded are diuerse , for either weapons are laide aside , or the parties agree vpon condition , or the fight receiueth some restreints , or limitations : for when both parties are wearie , both of paines and of expence , this is rather an ending of warre , then a concluding of peace ; as Tacitus saith in the like case : Bellum magis desierat quàm pax caeperat Tac . 4. annal . . And the like matter Cicero , in the like sort censureth : Summum otium sed senescentis magis ciuitatis quàm quiescentis Cic . ep . ad Qu . fr . lib . 2. ep . 14. : Wherefore it is good to make and ratifie perseueraunce of peace , beecause the reliques of the disease after the crisis doe manie times worke the ruyne and subuersion of our health . And according to the rule of Phisicke : The ashes of putrified bodyes will soone inflame the humours Hippocr . 6. epid . 2. et Merc . ad 2. de mor . : And therefore Tullus that artificiall warriour , in articulating peace with the Albanes , putteth them in minde , that they ought not so much to settle present peace , as to prouide for future agreements Dionys . 3. . And worthelie doth Isocrates reprooue the Graecians , because they did not compounde , but delaie enmities , vntill such time as one of them might destroie an other Isoc . in panegyr . . And excellent is that saying of Cicero : Pax est non in armis positis , at in abiecto omni armorum metu Cic . 10. lib . epist. Iam . epist. 6. . But to speake some what of the diuersities of making peace , if this clause bee comprehended in the Articles , That one of the parties should preserue the Maiestie and aucthoritie of the other with all kindnes and faithfulnes . Doctor Baldus tearmeth this simplicem adhaerentiam Bal . 5. cons . 106. , whereby ( as Romanus expoundeth it ) the weaker part doth adhere to the mightier : non vt subditi fiunt , sed vt defendantur Rom. cons . 417. . This adherence is lesse then protection : and he that is an herent , or vnder protection , is not presentlie vnder iurisdiction , but is onelie defensible from iniuries and violence , and that by souldiers and armour : Wherefore I wonder at Alciat , when hee saith , Faederati Latine loquentibus subditi sunt , non sotij Alcia . 7. cons . 13. , aut adhaerentes . Neither is it any subiection , though they giue somewhat in signe of superioritie Castal . de imp . q . 109. . Neither were the Carthaginians and Macedonians subiect to the Romanes , though they did paie vnto them a yearely tribute . But if a League be once contracted , it bindeth verie strongelie and effectuallie ; and that certaine ministeries or dutifull respectes were by reason of such Leagues due and demaundable , may euidentlie appeare by the League contracted betwixt the Romanes and the Lacedaemonians , wherein it was expressed , that they should liue according to their owne Lawes , and should not conferre anie thing in name of tribute , saue onelie certaine friendlie ministeries , and offices Strabo lib . ● . . And for the further proofe of the straitnes and strength of this publike bonde , this forme of League was found ingrauen in an auncient stone : Batari fratres , & amici populi Romani Dio lib . 69. : So that Bodinus is not to be harkened vnto , who thinketh that by freindship or league contracted betwixt nations , no aide is due vnlesse it bee expressely mentioned Bodi . lib . 5. de rep . c . vlt . : for Baldus teacheth him otherwise , that there is one bodie of two cities or two common weales , by reason of friendship concluded : Bal . cons . 29 but for the better vnderstanding hereof it is to be noted that there be two kindes of societie or publike friendship : one which is tearmed {αβγδ} , the other which is named {αβγδ} . Suid . Thucyd . 1. Rhod . 11. an . le . 6. {αβγδ} , is when the parties contracting league are by force of the league to haue the same friends , and the same enemies , which maner of societie was much vsed by the Romanes : the other is but as it were the moitie or halfe part of this , as namely when one of the league is to helpe the other when he suffereth iniurie : but not when hee offereth iniurie for it is a good rule in the ciuil law , rei turpis societas non intelligitur : l. 5. 7. vbi Bal . pro for . Therfore he that couenanteth to defend a castell or farelet is not bound , if warre bee raised through his fault , to whome hee made the couenant : Alexand . 3. cons . 114. and Castrensis auoucheth , that this ought to be vnderstood of a necessarie , not of a voluntarie warre : But this is cleare and certaine in this case , that he that is bound so to defend , is bound to defend by weapons : Deci . li . 59. de . reg . iur . & 3. cons . 117. and he that is bound in such case personally to helpe an other is much more bound to helpe him with money Alci . 3. consi 2. yet that must be thought to be onely then required at his handes , when the other can not prouide for his owne necessities . Now it is to be considered , whether eyther of the parties may depart from the league . And I thinke vpon iust occasion such a departure may bee made : Faedus non violatur si ab eo disceditur ob rationem iustam l. 14. 15 16. pro soc . : But this must not bee for a light cause : for light causes are alwaies arising : and all contracts would bee most weake , if for a small and worthlesse cause it should be broken or not regarded . But a prince may safely depart from the league if some part of the league bee broken by the other partie : Cagnol . l. 41. Cod . de . trans . and leagues as all other contractes bee indiuidua Deci . Cons . 265. cep . 455. 461. : for there be alwaies exceptions vnderstoode in euery league as these for example ; Nisi causa superueniat : nisi culpa accesserit eius cui promissio ista fit , & pactio foederis : rebus sic stantibus . Thus we haue spoken of warre and peace generally , now it remaineth to discourse of the particular circumstances of these two principall points and moments of a common weale .

3 Before warre be maintained by one prince against an other , it behooueth him that commenceth war to denounce the warre solemnly by ambassadors , and by that meane to certifie him of his purpose . For this course is prescribed by the lawe of God Deut . 20. Ioseph . 5. antiquitat . Aug. iudic . q . 49. . And it was practised by the Grecians , Barbarians , and most of all by the Romaines Acrod . lib . 5. Kenop . Ages . Diony . 2. Liui . 1. : Whereupon Cicero saith , Nullum bellum iustum haberi videtur nisi nuntiatum , nisi indictum , nisi repetitis rebus Cice . 1. de offi . n . c . 1. 23. q . 2. : Which saying is cited and auowched in the Canon law c . 1. 23. q . 2. . And this is likewise affirmed in the ciuill law . l. 24. de capt . And therefore it is held by the interpreters of the ciuill law , Proditoriè agit qui non indictum mouet bellum : Ias . Bald . l. 5. de iust . l. 4. c . de obs . p. And Varro reporteth , that iust warres did cease to bee waged in his time , because they ceased altogether to bee lawfully denounced Var . lib . 4. de ling . Lati . . For the auncient Romanes did not affoarde a triumph to anye , vnlesse the warre were solemnely proclaymed Sigon . de anti . iur . pro vin . : And Alciat accompteth this the law of nations Alcia . 14. de si . cor . . And because warre is a publike contention , if in priuate causes summons and citations be vsed , surely in vndertaking warre , denuntiation ought to bee vsed Bald . l. 12. de serui . vrb . praed . ; for which cause the Romanes were in this point so precise , that they did often denounce war when they needed not ; euen when the law of nations was apparantly violated by other nations , so that they might iustly haue enforced them , as the rule of the common law is to haue taken notice of their owne wrong . In this sort they proclaymed warre against the Senones who had slayne their ambassadors : against the Illyrians and Tarentines , who had contumeliously abused them Liui . 12. 20. . And this is noted of them in the case of the Saguntines : Non statim ad arma procurrunt , dum prius more legitimo queri malunt : Flor . lib . 2. So Liuie reporteth of the Frenchmen ; Erant qui extemplo Romam eundum censerent , sed vicere seniores vt legati prius mitterentur questum iniurias , postulatumque vt pro iure gentium violato Fauij dederentur : Liui . lib . 5. Wherefore Xerxes doeth greatly inuey against the Graecians because they did not first assay to end their controuersies without weapons : Herodot . l. 7 and for the same cause Ioab is iustly reproued in the scripture of the wise woman : 2. Sam . 20. neither was hee vnwise in this pointe that said : Omnia prius experiri verbis quam armis sapientem decet . Qui scis an quae iubeam sine vi faciat . Ter . in Eunuch . Yea euen Tullus a most warlike man is of this opinion : Quae verbis componi non possunt armis decernantur : Dionis . li . 3. So Theseus a notable Captaine saith in Euripides . Si oratione non persuadeo bellum laudo . Vade , dic Creonti : Theseus amanter repelit a te cadauera : hic primus sermo : si nihil efficis , secundus , vt me armatum expectet . Eurip . in Supp . And so Theodorius said truely to Alaricus : Tunc ad arma cum locum apud aduersarium iustitia non potest inuenire : And againe , Quid opus homini linguasi causam manus agat armata . Cassiod . 5. Var . 1. 7. Thus it is euident that by the lawe of nations warre should be denounced .

4 Somewhat must be spoken of truce , which is thus defined in the ciuill law : Induciae sunt cum in breue et in presens tempus conuenit , ne inuicem se lacessant : lib . 19. de capt . And Gellius maketh mention of a truce which was made for an houre onely : Gel . li . 1. c . 25. Vergill calleth truce pacem sequestram , because it sequestreth as it were , and suspendeth war for a time . Varro tearmeth it , Ferias belli , warres holiday . Virgil . 11. Aenei . In that it is called sequestra pax , it is to bee noted that it is not simplie a peace . In the Cannon lawe it is called tregna : it is of this nature , that by it warre is not ended but deferred onely , and so it is middle betwixt warre and warre euen as sequestration is middle inter duos altercantes betwixt two parties that are at variance . But peace properly so tearmed is of another nature , because it is perpetuall , and vnder the name of peace truce is not comprehended , no though truce be concluded for a long time : as the Veientines made a truce during the space of an hundred yeares with the Romanes : afterward for fortie yeares , and after for twentie : as the Tuscanes had a truce first for thirtie yeares after for fortie , and then peace was concluded . Neyther is it so much as a league , as may appeare by Liuie : De foedere negatum : induciae in biennium datae Samnitibus . And so hee reporteth of the Tuscanes . Pacem faedusquè petierunt , inducias in tringinta annos impetrarunt . Liui . 1. 2. 4. 9. 10. So Plutarch reporteth of Pelopidas , that hee woulde not conclude peace with his aduersary , but that he granted him truce Plut. in Pelop . . Ancharanus doth thus distinguish them there is a time of warre , a time of truce , a time of peace Anch. cons . 88. . And an other Ciuilian auoucheth truce to be more like to war then to peace Corn . 3. cons . 167. . And an other saith fitly , Induciae non interrumpunt hostilitatem , sed actus hostiles : Aug. l. si vn vis . de pact . But this must be obserued in obseruing truce , that in time of truce aduantage may not be taken either in regard of the place , of the fight , or of other circumstances . Therefore Phillip may seeme to haue done vniustly and against the lawe of armes , Liui . lib . 31. who hauing obteyned truce for the burying of his dead , did in this time of truce conuey his armie into safer places . And the D. of Mompensier was likewise guiltie of this fault , who hauing couenanted to yeeld vp a forcelet if helpe came not within one moneth , in the time of truce departed from the forcelet , hauing left it sufficiently fenced Guicciar . li . 2 . And it is thought to bee against the lawe of truce to receiue soldiers at that time into a towne besieged : Com . Pij . 2. lib . 5. For it is an vsuall clause in the concluding of truce : Nil nouari securitate pendente : Vital . tract . clau . So Scanderbege doth sharpely reprehend the Turkes , who hauing promised to yeelde themselues if ayde did not come within a certaine number of daies , do in the meane season repaire the breaches of their wals and munition : Scanderb . 8 Neither can Tissafernes bee excused from the violation of truce , who in that time did make himselfe more strong for warre . But Agesilaus is noted to haue done the contrarie : Corn . Nep . Agesil . Neither can the acte of Belisarius bee iustified , who in the time of truce surprised certaine townes , out of which the Gothes departed , howbeit hee answered to this obiection , that he might well enter into such townes as the Gothes had left and waiued : but the Gothes did not waue them ; for they departed out of these townes through penurie , & want of victuailes Procop . l. 2. de bel . Goth . : Now by the ciuill law hee that departeth out of a place , or casteth any thing away being inforced by necessitie cannot bee said to leaue that thing behind him pro derelicto l. 1. 7. pro dere l. l. 8. de Ie . Rho . : Yet the common law may seeme to sway with Belisarius , which extendeth derelictum , both to that which is voluntarily forsaken 16. Eliz . 138 Dy . . And to that which is waiued and left by necessitie 29. E. 3. 29. 12. E. 4. 5. : yet it cleareth not Belisarius , his acte : for during the time of truce no warlike action should haue beene enterprised : so that if the Gothes had left these townes voluntarily , and not by necessitie , this had not exempted him from doing apparant wrong .

5 Because safeconduct is a thing much vsed amongst nations in politique respect , & therefore is parcell of the law of nations , I may not omit or ouerpasse it . Safeconduct because it is in Latine fides publica , doth argue that it may not be granted regularly but of a publike person who is an absolute Monarch , or of some publike estate or common weale ; and in England it hath beene vsed to bee graunted by parliament , as appeareth by the statute of Magna charta : Omnes mercatores , nisi ante prohibiti fuerunt , habeant saluum conductum exire , & venire in Angliam ad emendum & vendendum praeterquam in tempore guerrae : & si sint de terra contra nos guerrina , si mercatores nostri in patria illa sint salui , & salui sint illi in terra nostra . I mentioned before this worde ( regularly ) because by commission and speciall warrant hee that hath potestatem explicandi ardua : or hee that hath causae cognitionem , maye graunt and affoarde safeconduct for the better performance of his taske Decia . 3. consi 96. . But safeconduct is to be vnderstood largely , by equitie , and without cauils : and therefore if safeconduct be granted to one , to come safely to a place it is intended that he ought safely to depart , and hee that hath licence to passe safely may send safely Bar . li . 1. C. de nan . Alex . 2. cons . 46. 5. Alci . 4. 14. : and he to whom safeconductt is graunted for himselfe and his company , may bring with him in his company odious persons , as Iewes and infidels Alc. l. cons . 11. 25. Dec. cons . 51. : but fugitiues , reuolters , rebels and traitors he may not bring with him , for no law of nations nor benefit of common weale belongeth to such , 8. 38. de pae . reuolters or runnagates are by the ciuill law burnt aliue , or els hanged vpon a gibbet . Marcellus and Cato the Censorian did whip them and put them to death Plut. in Mar. & Cat . : Others in setting forth of their games and showes did cast them to beasts : others did lay them vnder Elephants to be trode & torne in peeces , others did with other extremitie worke their death Liui . 24. 26 Val . Maxi . 2. c . 7. Front . 4. c . 1. Appi . in bel . Hispan . : neither do I think that safeconduct may extend to men of another nation , then he is of , to whom safeconduct is granted . For example , the Fleminge , the Turke , the English are enemies to the Spaniard , if safeconduct be granted to the Fleming , he may not take Englishmen , or Turkes with him in his company . But safeconduct being granted to the husband must needs extend to the wife , and to such thinges as be necessarie to him ad bene esse Bal . 5. cons . 413. : And to such familie-seruauntes or retinue as to be agreeable and proportionable to his dignitie and estate Aug. l. 8. de inof . test . : for according to the rule of the ciuill Law , in personalissimis actibus inseparabiles personae includuntur Bal . 1. 3. de const . pri . .

6 I will now speake of Captiues , and of the rightes that belong to them ( for miserie needeth some solace ) by the Law of Nations . A Captiue as the name importeth is he , who is taken in warre , and though he be borne of a captiue woman , yet is he free , vntill such time as he be seised into the handes , or to the vse of the Lord , and though he be so seised , yet it must needes be that he was borne free : for the rule is true : Quae iure gentium acquiruntur , ea non acquiruntur nisi vera interuenerit apprehensio l. 3. de acqui . po . vbi Ias . , otherwise he should possesse the treasure who possesseth the ground in which it is , yet he doth not possesse it , howbeit he knoweth of it , and therefore that rule is not in the Law of Nations true : Si quis habet id quod continet , habet id quod continetur : For in the Law of nations this generall maxime holdeth place : Vera et realia non ficta , et verbalia amat ius gentium : yet such a precise seisure is not heere ment that euery part of him that is taken should be touched , euen to the verie shirt of a man , as long as he that seiseth hath a will and power to seise : for he that toucheth a mans eare , is in the ciuill Law held to touch the whole man Alc. d . 41. d . l. 3. l. 21. de fur . . Some hold opinion that he is not a Captiue , vntill he be brought into the tents of his enemie l. 5. de capt . Alex . l. 1. de acquir . po . tt . 4. reg . 6. , howsoeuer it be , it is plaine , that Captiues may not be put to death ; as the prophet said to the king of Israel : An quos captiuos abduceres , gladio tuo et arcu tuo eos percuteres ? And though bloudie Pyrrhus desirous to kill Polyxena did pretend , that lex nulla capto parcit aut poenam impedit : yet Agamemnon aunswered him well , quod non vetat lex hoc vetat fieri pudor Senec . in Tro . . To which purpose the other Seneca saith excellentlie : Augusta innocentia ad legem bonus esse , et latius officiorum patet quàm iuris regula , multa exigit pietas , humanitas , liberalitas , iustitia , fides , quae omnia extra publicas tabulas sunt . The Scots therefore are greatlie to be commended , who as Buchanan reporteth , though great daunger were imminent , yet did not slaie their prisoners Buchan . lib . 9. . Neither did the English euer ( that I reade ) vnlesse it were once in that notable fight , in which they did vtterlie destroy the French dominion , who hauing more prisoners then themselues were , and finding their captiues to tende to conspiracie and mutinie , hauing singled the most noble , did kill the baser prisoners Com . Pi . 2. lib . 6. Polydor . 17. . But doubtles the Turkes crueltie was barbarous , who did kill fowre thousand prisoners , that they might not be a burden or charge vnto him Ior . lib . 3. . And this fault was committed by Henry the second king of Fraunce Nat. Com . lib . 8. , who did cause certaine obstinate prisoners , & perseuering in fight to be hanged : a kind of death vnfit for Captiues , who are not so to be punished without great and vrgent cause , because it is a point of immanitie , and crueltie , bitterlie to rage against them which defende their Prince , and their Countrie .

A Captiue one may be , and yet not a bondslaue : for he can not be a bondslaue , vnlesse his Lord will haue him so . There was a ceremonie therefore vsed to make him bondslaue , which was called Nexus ; And it seemeth that the Praetor had some authoritie in this matter : which I ground onelie vpon the last will and militarie testament of a Romane , ingrauen in stone as Sigonius reporteth , who would haue his villaines manumitted by the Praetor Car . Sigo . in vit . et trinu . ph . : and sithence eiusdem potestatis est ligare & soluere , I am of opinion therefore , that he had some intermedling in the making of them villeines . But in the making of them villeines , chaines doubtles were vsed : and therefore Vespasian when he had taken Iosephus prisoner , would needes haue his gyues to be broken , not to be loosed , that he might seeme neuer to haue been a bondslaue Ioseph . lib . 5. de bel . Iud. . And whereas the Law saith , that such thinges as are taken of enemies capientium fiunt l. 5. de ac . re . do . , it is not meant nolentium : therefore though the power of him that taketh make a captiue , yet his will must make a bondslaue . But surelie the state of captiues , if they become bondslaues is verie miserable : for they are as it were deiected from their nature , and are in accompt of Law tourned into beastes : And wheras before they were accompted in Law persons now they are accompted thinges ad leg . Aquit . 209. Bald . 2. cons . 358. , and therefore of the Graecians they are generally called Samata bodies . But I do not think this seruitude to be contra naturam : For Aquinas his distinction is not to be reprooued , that seruitus is á natura , though not secundum primam intentionem , by which we are all made free : yet ex secunda by which God doth punish whom it pleaseth him : but such bondslaues must not be vsed like beastes , but like men : wherefore the speech of some is intollerable ( Seneca reporteth it ) who did affirme domino in seruum nihil non licere , pictori nihil non pingere Sen. 1. contr . 5. . And Plato writeth not well when he saith , Plat . lib . 6. de leg . that bondslaues are to be handled roughlie h . Aristotle more trulie , that they ought to be handled mildlie Arist . 1. polit . . Cicero more iustilie , Meminerimus et aduersus infimos iustitiam esse seruandum , Macrobius more modestlie , Dominum patremfamilias , seruos familiares appellauerunt nostri maiores omnem seruis contumeliam detrahentes Macrob . 1. saturnal . 11. . Clemens Alexandrinus more compassionatelie : Famulis vtendum tanqum nobis ipsis : sunt enim homines tanquam nos Cle . Alex . vlt . paed . . Nunquid canes saginabuntur , homines pascentur male ? said Diogenes . In Athens there was a Law de iniuria seruili Athenae . lib . 6. . Amongest the other Graecians there was a Law , that bondslaues might depart from their cruell maisters . In some common weales they had licence to purchase landes , and goodes , as Athenaeus reporteth , according to the Romane Law , as appeareth by Seneca , Dominus praestare debet seruo cibarium , vestiarium : est enim seruus perpetuus mercenarius Senec . lib . 3. de benefic . .

7 Enough of Captiues : Now let vs not be vnmindfull of Hostages , which are in state not far distant from Captiues : Therefore Quinctius did cause the sonne of Phillip , and the sonne of Nabis to be led before his triumphall chariot , though they were but Hostages Oros . lib . 4. c . 20. Liui . 34. . And the Parthians were wont to saie : obsidatus nihil aliud est , quàm seruitus Ioseph . lib . 18. antiqu . . By the Ciuill Law they can not make a testament no more then others , which are in the enemies power l. 11. qu . test . fa . po . . The definition of Hostages is thus deliuered in the ciuill Law : Obsides sunt qui fidei publicae seruandae causa , principi , aut duci exercitus dantur Bal . l. 2. c . de pa. qui fidi . . To whom this daunger is incident by the Law of Nations ; That if promise be not kept to him whose Hostages they be , they may presentlie be put to death : As may appeare by the examples of the Thessalians Plut. de cla . mu . , the Romanes Liui . 2. Diony . 6. , the Gothes Procop . lib . 1 de bel . Goth . , the Dacians Bodin . 1. de rep . c . 10. , the English Polyd . lib . 5. 7. 15. .

8 I may not omit to speak somewhat of the Law , and lawfull vse of Stratagems , which haue been so much fauoured and practized in auncient times , that it hath been generallie and peremptorilie affirmed : Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum euentus Ammian . Marc. lib . 17. . And S. Augustine his authoritie is vrged in the Canon Law : Cum iustum bellum susceperis , vtrum aperta pugna , vtrum insidijs vincas nihil ad iustitiam interest Aug. Ios . q . 10. c . 2. 23. q . 2. : To which agreeth the saying of the Poet : Dolus an virtus quis in hoste requirat ? And counsaile hath been giuen by Oracle , that men must not onely fight by warlike instruments , but by nimblenes of witte Pausan . lib . 4. . And Brasidas saith in Thucydides , that the theft of warre is most honest . And Silius censuring Fabius vsing such cunning plots saith : Exin virtuti placuit dolus Sili . lib . 15. . But yet great regard is to be had , that all kind of deceit and fraude may not be vsed & admitted : because Law must be vsed in dealing with enemies . But the Law admitteth not dolum malum , being the arte boni et aequi . And in concluding any matter with enemies , all captious and scrupulous disputations and interpretations are to be auoided : for as Cicero saith : Leguleiorum est syllabas & apices aucupari , ( non militaris simphicitatis Cicer . 1. de ora . l. 25. de prob . . ) Wherefore Pericles dealt vniustly , who hauing couenanted with his enemies , that they should be safe si ferrum deponerent , did afterward kill them , because they had about their harneys certaine yron buttons : for this word ( ferrum ) was to be vnderstood of weapons : as appeareth by that saying of Pyrrhus in Ennius : Fronti . lib . 4. c . 7. Ferro non auro vitam cernamus vtrique . And they of Plataea were vniust , who hauing promised to restore certain prisoners , did first kill them , and then deliuer them Thucyd . lib . 2. : as if the carcasses of men were captiues , and a dead man were a man . Vniust was Alexander , who hauing promised to certaine persons a safe departure out of the citie , let them go safe out of the citie , but hauing gone a little of their way , he caused them to be slaine Diod . lib . 17. Polyen . 4. . The Samnites were vniust , who hauing promised their enemies that they would take away but a stone all along the wall , did take away the foundation-stones & so destroied the whole wall Polyen . 6. . And that Romane can not be excused from blame , who when Antiochus had promised him that he should haue halfe of his shippes , caused all his Nauie to be cut in the middest Valer . Max. lib . 7. c . 3. . And the craft of the people of Lacros is to be reprooued , who hauing promised perpetuall friendship whilest they should treade vpon that earth , and whilest they should carie on their shoulders their heades , did cast out of their shoes the earth that they had put into them , and remooued from their shoulders the heades of garlike which they had priuilie laied on them , and then they leuied warre Polyb . lib . 6. . For as Cicero , though a pagane saith diuinely : Semper in fide quid senseris , non quid dixeris cogitandum Cicer . 1. et 3. de offic . . Neither is it materiall that some examples , and namely these abouesaid may be vrged for the defence of such sinister dealing , for these few examples make not the Law of nations . Neither in this treatise do we imagine what hath been done of some men , of some nations , in some cases , vpon some occasions . But what hath been done of the most part of the best men of all Nations , vpon grounded aduise , and free election . And surely diuers such great & eminent parsonages haue sometime vsed such stratagems in good sort , and without breach of national iustice . Iudith that wise and valiant woman , for her plot intended and practized against Olofernes is commended of diuers , yea euen of Diuines : of Clemens Alexandrinus Clemens stromat . , of Ambrose Amb. 3. de offic . , of Ierom Hieron . apo. Ru . , of Augustine Aug. de te . 228. 229. , of other . So Augustus Cesar did promise to Cleopatra what she would , if she would effect the death of Antonius Dio cassi . lib . 51. . Such snares were laid against Timoleon , against Eumenes , against Lucullus by Mithridates , as Plutarch reporteth . They were assayed by Metellus and Marius , and perfourmed and executed by Sylla against Iugurtha , as Salust auoucheth . They were compassed of the Aetolians against Nobis Paus . lib . 8. . And attempted of Perseus against Eumenes Liui . lib . 42. . And likewise of Decebalus the king of Dacia against Traian Zona . Dio . 68. . They were procured latelie of Tiruultius against Sforza Duke of Millaine Iovi . lib . 11. . And in time past perfourmed by Totilas against the Gouernor of Perusia Procop . lib . 3. de bel . Goth . . And in this age of Selymus the Turkish Emperour , against king Aladolus Ioui . lib . 17. . And heretofore of a certaine Triballian against Amurathes Catachond . lib . 1. . Manie such cunning practizes were deuised and executed by Annibal that admirable souldier , in whom the two seueral natures of the Foxe and the Lion did constell and accorde : but he was fully countermated by the Romanes , of whom therefore he said : video Romanos suos habere Annibales .

I must conclude with shewing the vniuersall and absolute right , aduantage , libertie , power , and prerogatiue of the Conquerour . The question hath been heretofore , whether all these things that anie waie belong to the people subdued may be claimed by the Victorer , or onelie such things Quae pede praemit , manu tenet . It hath beene agreede , that when Alexander did surprise Thebes , he was an vniuersall & no particular possessor of all their rightes and inheritances Bald . 2. Consi . 202. : And whereas the Chalcedonians being dangerously assaulted by the armie of Alcibiades did priuily and closely conuey their goods for safetie vnto the Bithinians , Alcibiades hauing conquered them , made earnest demand of these goods , to be deliuered him by the Bithinians Xenoph . 1. Graec . : And the Romanes did demand the bodies of certaine kinges Demetrius and Mithridates , being ouercome and put to flight , of them to whome they fled Liui . 7. 22. Plut. in Luc . App. in Mithr . : but without all doubt these places , and the things of these places which the conquering armie doth possesse , doe iustly belong vnto the conqueror , & therefore that is said to be the conquerors territorie , vbi exercitus eius terret Panor . 2. cons . 62. Bald . lib . 3. de . off . praes . : And Alexander might well laugh at Darius , who in the articles of peace would haue yeelded these things to Alexander , which he did alreadie possesse Curt . lib . 4. & 5. : And Hanniball did disdaine the Romane simplicitie ( though they did it of great pollicie ) in selling that ground which hee did possesse with his armie Liui . lib . 26. : And Brasidas the Lacedemonian saide well , that that was not the Boetians land , which the Lacedemonian armie had seysed : Thucyd . li. 4 And when a Monarche or free citie yeeldeth , al the members and inferior parts doe yeeld implicatiue : wherefore Baldus saith well , A submissione capitis sequitur submissio membrorum & rerum , quia seruiente capite membra seruire necesse est . And it is certain , that the ornaments & riches of the people subdued they may take away iure imperatorio , as Cicero saith : Cicer . Verr . 3. So Camillus a most strict obseruer of the lawe of armes did take the image of Iuno from Vetos Liui . lib . 4. : Marcellus caried away many things from Siracuse , Plut. in Marc . and Mummius conueied great store of Church-ornaments out of Achaia Zonar . : And Sir Frauncis Drake that sea-flowre of England did ( as I haue heard ) bring home with him the great golden statue of S. Christopher which hee tooke in one of the Churches of Porto Rico when hee sacked it . And though there bee somewhat in scripture Dani . c . 5. spoken against the spoylers of the temple of Ierusalem , the cause was for that God had chosen that temple to be his house and the spoilers of it did it in reproach of his maiestie . But it is plaine that cities surprised may bee sacked : cities yeelded vpon condition may not Liui . lib . 37. : and cities surprised may bee sold , and the walles may be destroied , and the cities themselues Plut. lib . 4. . The wals of Athens were destroyed by the Spartanes Thucyd . li. 1. . The walles of Sparta by the Achaeans Liui . li . 38. : the walles of Ierusalem by the commandement of Pompey Tacit lib . 5 : part of the walles of Giscala by Titus Ioseph . 4. belli . Iud. : the walles of Argentina by Attila , which hee would needes haue afterward called Polyodopolis , as now hauing many waies to come vnto it . Bon . fin. 1. vng . 2 Fredericke was brought in triumph through the walls of Millaine yeelded vnto him Sigon . lib . 13. de re . It. : Alponsus through the walles of Naples : Guicciat . l. 9 ( as Guicciardine reporteth ) Iulius the Pope of Rome through the walles of Mirandula : was it because the gates were throwne downe ? or because such a holy man wold not make a prophane passage through the gates , but through the walles which are commonly consecrated ? or because his ordinarie course is to enter by the window , his extraordinarie at the wall ? or because he wanted the Aspe and the Basiliske to walke vpon , he thought good for that present to trample vpon stone and morter ? as to generall subuersion of cities after a victorie obtayned , it is manifest that Thebes was destroyed by the generall concord of all the Grecians , because they tooke part with the Persians Diod . li . 15. . Liuie maketh mention of Alba , Pometia , Corbio , Cortuosa , Contenebra , Satricum , Antipatria , Phaleria , and others , which were so destroied Liuie . l. 1. 2. 3. 6. 7. 24. 31. 32. : Carthage , had the same fortune , which is said to haue suffered the plough , a ceremony vsed of the Romanes in razing of the foundations of a citie conquered l. 21. qui . mo . vs. am . : the same fortune had Ierusalem c . 7. dist 76. 1. Mich . 3. , according to the prophesie of Micheas : Sion vt ager arabitur l.

The eight Chapter . That in the lawes and constitutions touching Citties , corporations , liberties , franchises and immunities , and the good gouernment and administration of them , all nations haue agreed .

COrporations in the whole course and constitution of them doe verie much resemble the naturall bodie of man : for as there bee in it great diuersitie of partes , so is there likewise great distinction in cities and corporations , of misteries & degrees . In Egipt there were in their seuerall corporations diuers sorts and callings of people ; Kings , Priests , Warriors , and Workemen : which last kind was subdiuided into foure members , Shipmen , Artificers , Husbandmen , and Shepheards , Arist . lib . 7. polit . c . 10. Herod . lib . 2. histor . . And as a naturall bodie doth consist of things bodily , and of a soule , which is vnbodilie , so that it consisteth of thinges meerely opposite . So likewise a citie or corporation consisteth of multitude and vnitie , whereof multitude is as the bodie , vnitie as the soule , both different in nature . That multitude is as the bodie of a Cittie needeth no great proofe : Yet heare thereof Florus : Cum populus Romanus , Etruscos , Latinos , Sabinosque miscuerit , & vnum ex omnibus sanguinem ducat , corpus fecit ex membris , et ex omnibus vnus est Florus . l. 3. c . 18. . Heare the opinion of the Stoicks , comparing the world to a corporation . Ciuitas totius mundi vna est , & omnes homines populares , municipesquè & veluti armentum vnum compascuo in agro compascens Cice . li . 3. de si . Plut. de vi . Alex . : Heare also Seneca . Homo homini in maiore ciuitate ciuis est , & in adiutorium mutum creatus Senec . 1. & 2. de ira . : and that vnitie is the forme and as it were the soule of a corporation may diuersely appeare Florus saith excellently ( for he either could not or would not write but excellently ) Augustus Caesar sapientia sua atque solertia perculsum vndique et perturbatum ordinauit imperij corpus . Quodita nunquam haud dubiè coire & consentire . potuisset , nisi vnius praesidis mutu quasi anima , & mente regeretur . Florus . lib . 4. c . 3. And Seneca saith wittily : Societas haec nostra lapidum fornicationi simillima , casurae nisi inuicem obstarent & sustinerent se lapides ; Sene . epist. 96. This our society is like vnto an arche of stones , which would soone fall if one stone did not hinder and beare vp another . S. Ambrose diuinly : Lex naturae ad omnem nos stringit charitatem , vt alter alteri tanquam vnius partes corporis deferamus . And the saying of Cicero , though an heathen is not heathenish . Spurca eorum sententia qui ad se omnia referunt Cice . lib . 7 ad Attic . ep . 2. . And both he and S. Ierom Hieron . ep . 24. doe condemne certaine Philosophers , who whilest they thinke it sufficient to be without all kinde of vniustice , and bend themselues wholly to that , that they may not hurt any man , yet offend greatly in this , that they doe not seeke and endeuoure to profit other men , but forsake that part of iustice , whilest they follow the other : from which fault all the Rhetoricke in the world cannot exempt the cloistered Monkes and couchant Friers of the Romish liturgy : Claudian speaketh aptly of this matter Claudi . 4. cons . Honor . : Nonne vides operum quí se pulcherrimus ipse , Mundus amore ligat .

Thus it is euident , that a multitude lawfully & for a politike end assembled is the matter of a corporation , vnitie the forme . Likewise as a naturall bodie hath his diseases , so hath the bodie politike . Wherfore Liuie his comparison is incomparable . Nulla magna ciuitas diu quiescere potest : si foris hostem non habet , domi inuenit , vt praeualida corpora ab externis causis tuta videntur : sed suis ipsa viribus onerantur Liui . li 30 . And againe , Discordia ordinum est venenum vrbis huius Liui . lib . 3. : yet in some things the bodie naturall and a citie or corporation do differre : for the naturall bodie is transitorie and mortall : but a bodie politicke dieth not as it is shewed by M. Townsend in the Mayor of Norwitches case . The comminaltie is the substance of a corporation : and of them dependeth all the inheritance : for the Mayor and the Sheriffes may die , and be chaunged , but so can not the comminaltie 21. E. 4. 7. 12 27. 67. Mai . de Norwich . c . per Townes . : which is elegantly auouched by Liuie speaking in the person of Scipio that worthy man : Si ego morerer mecum expiratura respub . mecum casurum imperium populi Romani esset ? ne istud Iupiter optimus maximus sinat vrbem auspicato Dijs authoribus in aeternum conditam , fragili huic & mortali corpori aequalem esse : Flaminio , Paulo , Graccho , Posthumio Albino , M. Marcello , T. Quinctio . C. Fuluio , Scipionibus meis , tot , tam praeclaris imperatoribus vno bello absumptis , superstes est populus Romanus eritque mille alijs nunc ferro , nunc morbo morientibus Lui . li . 28. . And Tacitus speaketh of this matter pithily though shortly : Principes mortales , aeternae resp . Tacit. annal . 3. And there is an other difference taken in the said case of the Mayor of Norwitch : for a man restrayning the hands of an other mans naturall bodie , doeth restreigne his bodie , but if one do imprison the Sheriffes of a citie , the comminalty is not imprisoned . By this comparison the nature of a politike bodie may sufficiently appeare . Now I will speake of the incorporating and enfraunchising of citizens which hath beene very auncient , as may appeare by Tacitus . Conditor nostri Romulus tantum sapientia valuit , vt plerosque populos eódem die hostes , dein ciues habuerit : and he sheweth it more particularly , Neque ignoro Iulios Alba , Cornucanos Camerio , Portios Tusculo , & ne vetera scrutemur , Lucania Etruriaque , & omni Italia in senatum accitos . And he giueth a good reason wherefore it should be so : moribus , artibus , affinitatibus nostris mixti aurum & opes suas inferant potiùs quàm separati habeant : condemning the Lacedemonians & Athenians , who vsed it not . Quid aliud exitio Lacedaemoniis et Atheniensibus fuit quāquā armis pollerent , nisi qd victos {pro} alienigenis arcebant Tacit. lib . 11. annal . : Amongst the Romanes at the first none were admitted into their citie , but such as did inhabite in that part of Italie , which was called Latium : afterwarde it was imparted to the other people of Italie , such as dwelt beyond the riuer Poe , and the Alpes , and the sea . Claudius Caesar bestowed the freedome of the citie vpon many barbarous nations : and vnder these Emperours which were Spaniardes , Thracians , Affricans by little & little whole prouinces , yea and the whole Romane empire was endowed with the freedom and liberties of the citie : whereupon that speech was vttered , Romanus vbicunque vicit , habitat : and whereas at the first all nations beside the Grecians were accompted Barbarians , yea euen the Romanes , who afterward were Lords of all , and being Lords did exempt themselues and other nations which they had conquered from such reproch , and then they onely were noted for barbarous who liued not vnder the Romane Empire : Herodian . Sparti . Eutrop . wherefore Rhenus was said to haue two bankes , the furthermost of which was allotted to the Barbarians , the nearer to the Romanes , according to the saying of Claudian : O quoties doluit Rhenus , qua barbarus ibat . Quod te non geminis frueretur iudice ripis .

And that which Tacitus saith , that the Romanes did grant vnto the Rhemenses , the Lingones , the Bituriges , the Meldinenses , the Xantones , & the Hedui free people of Fraunce , the liberties & free vse of their citie ( the suffrage & giuing voice at the election of Magistrates and Officers onelie excepted and foreprised ) it is more plainlie and vnderstandinglie opened by Liuie in these wordes : Iam inde morem Romanis colendi socios , ex quibus alios in ciuitatem atque aequum ius accepissent , alios in ea fortuna haberent , vt sotij este quàm ciues mallent Liui . lib . 26. . Though Augustus Caesar at the first blossoming of the Romane Empire did make some scruple to enfraunchise straungers , and to admit them into the Citie of Rome : Neither would he bestow the liberties vpon a Frenchman , though earnestlie requested by his Empresse Liuia , whom he dearelie loued , disallowing the act of C. Caesar his adoptiue father , who enfraunchised a whole legion of his French soldiers , and reprooued likewise M. Antonius for selling the liberties of the citie vnto the Sicilians for money Tranquil . in vit . August . . Yet his posteritie was not so precise , but did abundantlie admit straungers : For Antonius pius did enfraunchise all that were subiect to the citie of Rome , that Rome might be the common countrie of all Nations L. in orbe de statu ho . ff . , imitating perhaps Alexander magnus , who accompted the whole world a common Citie , Rom. ad municip . ff . and his pauilion the tower of the citie Plut. in Alex . . And Seuerus did graunt to the citizens of Alexandria , that they might be Senators of Rome , and that other Aegyptians should notice free of the citie of Rome , vnlesse they were before free men of Alexandria n . Plin . lib . 10. epist. The Heluetians did bestow the liberties of their citie vpon Lewis the eleuenth , and other kinges of Fraunce Bodin . lib . 1. de rep . c . 6. . And Artaxerxes the king of the Persians did graunt such liberties to the whole familie of the Pelopidae Plut. in pelopi . . So the Athenians did make free of their citie Euagoras king of Cyprus , Dionysius the tyran of Sicelie , Antigonus and Demetrius the kinges of Asia , yea euen all the Rhodians Liuius : which the Rhodians requited with like curtesie , which was nothing else but a comburgeosie , such as Bodinus Bodin . vbi supr . reporteth to haue been made betwixt them of Valoys , and certaine towneships of the Heluetians : Betwixt the men of Berne , and them of Friburge : Betwixt them of Geneua , & them of Berne . The nature of which comburgeosie is , that there should be mutuall communitie of their cities , and mutuall league of friendship betwixt them ; And if any of these so leagued in societie should forsake their citie , and come to the citie of them with whom they were in league , they should be ipso facto Citizens without any speciall enfraunchisement , enroulment , cooptation , or any other circumstance : before which time they were not subiect to the commaunde and Lawes of that citie , but were onelie Ciues honorarij , as Hercules and Alexander magnus were of Corinth . Such a league of societie as seemeth by the yeare booke to haue been contracted betwixt the Citizens of Lincolne , and them of the towne of Derbie , that they of Lincolne should be quite from murage , pontage , custome , and tolle , within the village of Derbie , for all kind of merchandize 48. E. 3. 17. . This was the difference betwixt veri and honorarij ciues : the former were subiect to the Lawes , orders , and charges of the citie : the other were not . Plutarch Plut. in Solon . wondreth at Solon , in that he made a Law , that all straungers should be barred from the liberties of the citie of Athens , except it were such as were in exile : but indeed he perceiued not Solons meaning , being a man of deeper reach then Plutarch , as also was Polybius , and Thucydides , and Dionysius , of Halicarnassus amongest the Graecians his countrymen , whom notwithstanding in learning , wit , and eloquence he exceeded : for Solon his purpose was in the making of that Law , that none should enioy the liberties of the citie , but such as should be bound and subiect to the Lawes of the Citie . And there was likewise an other difference betwixt veri and honorarij Ciues : for they which were veri ciues did loose the liberties of the citie of Rome , whensoeuer they did purchase the freedome of any other citie : Which may appeare by this , that though Pomponius Atticus being borne in the citie of Rome , was a citizen of Rome , and more then that , beeing a Senators sonne , was eques Romanus , who was therefore called Atticus , because hee had the Athenians in such reuerence and estimation ( a man of great byrth : for three Emperours doe referre their originall to him , Senec . in epist. ad Lucil . ) yet this man could not bee made a citizen of Athens , least ( as Cornelius Nepos reporteth the plain truth Senec . in epist. ad Lucil . ) he should loose his freedom of the citie of Rome . But as to them which were honorarij ciues , Cornel . Nep . in vit . Attic . if they were enfraunchised of a hundred cities , yet they could not loose their freedome of any . In England not Cities onelie admit others to their liberties , but verie Societies of Students ; as namelie the houses of Court , and to mine owne knowledge , the worthie societie of Graies Inne , to which be admitted such a number of excellent noble men , great diuines , surpassing gentlemen , whereof some haue sued and been desirous to be admitted : other some haue rather been called , then ordinarilie consorted , for their preeminence and worth , according to the rule of Salomon : As is the fining pot for siluer , and the furnace for gold , so is euery man according to his dignitie . I pray God this fining pot may still continue her siluer of Learning and Law . I beseech him likewise that this furnace of gold , may still seuer the gold from the drosse , that is religion and loialtie , from paganisme and papisme : which hitherto , the Lord be praised , it hath done . But to retourne to my purpose of handling the nature and properties of Cities and Corporations , Though in the generaltie of admittance all common weales haue accorded , yet in the speciall maner of admittance they haue dissented and varied : For in Athens they could not bestow their fraunchise vpon anie without the suffrage and voice of a thousand citizens at the least Demosth . contr . Eub●lid . . But in such places and regions , which by reason of the barrennes of the soyle , or by reason of the distemperature of the ayre , are not verie well habitable , not onelie the originarie inhabitants , but euen straungers and aliens are forbidden by the Rulers of the places to depart out of them : As namelie in Moscouia Sigis . in hist . Moscho . , Tartaria , and Aethiopia Francisc . Aluares . in hist . Aethiop . : But amongest the Venetians and Rhagusians none can be admitted to their cities , vnlesse it be for a great summe of money , or some principall desert . But now sithence we haue spoken sufficientlie of Corporations in generall , let vs examine the first foundation and beginning of guildes and fraternities , which as Corporations do support the good estate of a Realme ; so they do preserue the good estate of Corporations . These Fraternities are deriued of the greeke word {αβγδ} , which is to be interpreted a well , or pit : for in drinking at one pit or well societie was at the first contracted : thence is deriued {αβγδ} fraternitie . So likewise Pagi , towneships , are deriued of the Doricke word {αβγδ} , which signifieth a fountaine , and in the Atticall dialect is {αβγδ} . By the meeting together at the first at one water or fountaine grew loue betwixt man and wife , then betwixt brethren and sisters , then betwixt vncles and nephewes , then grew affinitie : All which would haue been colde , if there had not beene corporations , colleges , guildes , fraternities , and societies erected and established . By the common Law , no Corporations can be made but by the king , yet his highnes may depute this authoritie to an other , for so it commeth originally from the king : howsoeuer Mast . Keble his opinion is , that a Corporation must be made by the kinges expresse and immediate wordes 2. H. 7. 13. . But 22. Edwardi 4. and 20. Hen . 7. the opinion of Read is to the contrarie 22. E. 4. Graunts 30. 20. H. 7. 7. , and both Mast . Fitzherbert , and Mast . Brooke Br. Patents 44. abridging the case , Fitzherb . Graunts 36. are in this contrarie to Mast . Keble : And so is the opinion of Choke and Brian , that if before the dissolution of Abbeys , the king had licenced one to make a Chaunterie for a chaunterie Priest , and to giue vnto him and his successors certaine land , this had been a good Corporation 21. E. 4. 56. . But to all vnlawfull Gorporations , all giftes , grauntes , fines , and feoffements are made voide by the Satute of 23. Hen . 8. cap . 10. The first Lawmakers and founders of common weales , at the first did accompt no foundation more stable to support a common weale then societies and fraternities . For Numa Pompilius the king of the Romanes did ordeine certaine guildes of workmen and merchants , and did binde them by solemne sacrifices and feasts , which might be at certaine set daies celebrated to preserue loue , and friendship amongest the people , that they might with more ioy and comfort proceede in their priuate and publike affaires Plut. in Num . Dionys . Halicar . lib . 2. : And this he seemeth to haue done by Solons example , who made fraternities of all sorts of men , and permitted them to make Lawes touching their fraternities , so they were not contrarie to the Law publikely receiued Plut. in Solon . . But Lycurgus did not prescribe certaine feastes to be obserued , but continuall meetings and comessations , that friendship might not at any time be intermitted . In other cities of Greece , societies called {αβγδ} , and throughout all Italie sodalitia were obserued . To this end and purpose the Cretensians of all ages , orders , and sexe , did banquet together in publike place Arist . in polit . . And in the famous Citie of London , there is annuall and solemne obseruation of their feastes in euery guild , which mightilie preserueth the wealth , tranquilitie , and florishing estate of that citie . Neither is this custome dissonant from God his owne ordinance in the Iewish common weale , who appointed certaine feastes and sacrifices to be obserued of the Iewes , that religion towarde God , and friendship amongest men might bee maintained Numer . 1. Leuit. 23. . But as to the making of priuate Lawes by such guildes and fraternities , Solons Law abouesaid hath been obserued almost of all common weales : But the Statute of 15. Henr . 6. giueth somewhat a larger scope to guildes and fraternities in these wordes : Guildes , and fraternities , and companies incorporate shall not make , nor vse any ordinance , which may be to the diminution of the Kinges fraunchise , or of other fraunchises , or against the common profit of the people , vnlesse it be first discussed by the Iustices of peace , or the chiefe gouernors of the village , and before them entred of recorde &c. But when I speake of colledges , companies , meetings , feastinges , and assemblies , I doe with the maine force of my hart exclude vnlawfull societies , conuenticles , and secreat meetinges of male-contents , phantasticall , and priuate humored persons : But to colledges , fraternities , and companies erected and created by Law , I see no reason but that landes and yearelie maintenance may be giuen and allowed vnto them : yet not without the Princes permission , who for some speciall causes fore-seene may stoppe and hinder such donations : And therefore wiselie by diuers Statutes in this Realme is remedie prouided against this , and a writ of Ad quod damnum deuised Statut . de Religios . 18. E. 3. pro clero . cap . 3. 15. R. 2. cap . 5. . Antonius the Emperour did first of all permit legacies and donations to bee made to colledges and companies , excepting the colleges of the Iewes , whom notwithstanding hee suffered to meete together , and to haue their synagoges for religious vse L. 1. de Iud . C. . Alexander magnus did bestowe vppon his citie Alexandria , built at the seauen-folde mouth of Nilus , manie great priuiledges , fraunchises , and immunities Ioseph . lib . 3. bel . Iud. . So Frauncis the first , being the founder of that citie which standeth at the mouth of Sequana , gaue great immunitie to such as should inhabite it Bodin . lib . 1. de republ . c . 6. . And so diuerse of our kinges of England haue bestowed many liberties fraunchises and benefits vpon seuerall citties , which M. Camden hath verie profitably & very learnedly amongst other things in their due places set downe , whome I need not further commende to my country-men of England , to whom by his great worth and desert he is more deare and precious .

Quàm si illum Veneris commendet epistola Marti .

But I will further proceed in shewing the great prerogatiues graunted by princes and other supreame estates to citties and corporations : In all ages and all common weales cities and corporations haue not only had their courts , folkemote , and the like , but euen common councels ( as they are commonly tearmed ) and publike meetinges for the generall good of the corporations . For as great profite doth arise by such societies and meetinges : so nothing doth more debilitate and weaken the state of a common weale then the taking away of such Councels : therefore the Romanes , when they had ouercome Macedonia , because they would make the estate of it weake and impuissant , they did vtterly forbidde all common Councels , and publike meetinges : so they did when they had ouercome the Achaeans : Memmius the Consull ( saith Liuie ) did dissolue all the common councels of the particular nations of Achaia , and of the Phocensians and Baeotians , and the other partes of Greece Liui . lib . 35 : But when these regions and prouinces were sufficiently quieted and soundly knit to the bodie of the Romane Empire : then ( as Strabo reporteth ) their auncient Councels were restored vnto them : but the Romanes did neuer alter the liberties of any citie vnlesse they were abused to their hurt , as appereth by the words of Florus : Critolaus causa belli , qui libertate a Romanis data aduersus ipsos vsus est Flor . lib . 2. : Neither were the liberties of the Aetolians impeached vntill they reuolted to Antiochus , as Iustin sheweth : Offensi Aetóli , quód non ex arbitrio eorum Macedonia quoque adempta Phillippo , & data sibi in praemium belli esset , Antiochum in Romana bella impellunt Iustin . lib . 3. . And such abuses many times happen in cities : for as Liuie that excellent writer , in wit diligence and history , matched by none : in wisedome and grauitie by very few , in pietie ouercome onely of one of the heathens , Varro . and but of one in eloquence well auoucheth : Cicero . Nulla est ciuitas quae non et improbos ciues aliquando , & imperitam multitudinem semper habeat : Liui . lib . 45. but as they did fauour lawfull and conuenient councels , so vnlawfull and secrete conuenticles they did greatly abhorre : wherefore the nocturnall meeting at the sacrifice of Bacchus was iustly abiudicated and disanulled by the whole Senate : & the conuenticle of the black-religioned Brownists by the L. Archbishop of Canterburie , & the high Commissioners , who though a greater number of them were women & pretended themselues to be harmeles , & vnapt to do hurt ; yet as Liuie saith ; A nullo non genere summum periculum est , si coetus & consilia et secretas consultationes essesinas Liui . lib . 34. : And this ought especially to be feared and preuented , when contumelious contumacy is vailed with the shadow of religion and reformation : for as the same Liuie saith againe very well : Nihil in speciem fallacius praua religione , vbi deorum numen praetenditur sceleribus , subit animum timor Liui . li 1. 39. : O lord how long shall Sathan abuse the soules created by thee with a vaine sophistrie in steade of true religion ! and such societies , and such families , whether of loue , or of lust , I can not well define , which delight in latebris , are worthy to be sent ad carceres , that they may there liue in tenebris : for it is fit to send corrupt humors , which ouerloden and pester the bodie in latrinam : For surely such Fanatickes may doe as great hurt in a common weale as the Pythagoreans did in Greece and Italie , who pretending themselues to bee professors of wisedome did bring a great number to the admiration and imitation of them : and finding such strength in the weakenesse of the multitude , they beganne to plant their ramme and sette their force against kingdomes & common weales , and had thought vtterly to haue subuerted them , but their companies were quickly dispersed , and the greatest parte of these companions was destroyed by fire and sword Polyb . li . 3. : Now to speake somewhat of the liberties of a citie . S. Paul when he was by the commandement of the magistrates apprehended , being accused that he troubled the publike tranquilitie by seditious assemblies , professing himselfe to bee a citizen of Rome hee appealed to Caesar Act. 25. v. 11 though hee were by nation a Cilician , by bloud an Israelite , by tribe a Beniaminite , yet because his father had beene a citizen of Rome : Acto . 22. v. 28. the liberties were affoarded vnto him : he likewise , when he was commanded to be scourged pleaded for himselfe that he was a Romane ibid . v. 25. . But because the abundance of liberties of all the cities of Asia , Africke and Europa , are sufficiently knowne , I will not stay any longer vpon this point , but wil passe to matters of greater importance , and more difficultie .

The ninth Chapter . That the disting●ishing of demesnes , & the difference of the degrees & callings of men , is according to the law of nations .

COnfusion breedeth alwaies contention , partition peace , according to the old prouerb , Diuide et impera : for which cause our ancestors did thinke it best to distinguish their dominions and inheritances by lottes and boundaries , as Abraham & Lot in Palestine , Masinissa and the Carthaginians in Numidia and Mauritania , the Romanes and Nolanes in Italie , the Romanes and Carthaginians in Spayne and Sicilie , the Emperour Valens and the Gothes in Missia , and the regions on this side Danubius , & through the whole tracte of the Romane Empire was a partition made by Theodosius betwixt his sonne Archadius whom he prefected ouer Bizance and all the orientall partes : and his other sonne Honorius , to whom he allotted Roome , and all the occidentall countries : and so Darius would haue made a partition with Alexander of the whole world , that the one of them shold haue all on the one side of Euphrates : the other all on the other side , yet in the first age and infancie of the world this kind of partition was vnused and vnknowne , as may appeare by these authorities first of Virgill , who saith : Ne signare quidem aut partiri limite campum Fas erat . Virgi . Georg . 1. And of Tibullus : non fixus in agris Qui regeret certis finibus arua lapis Tibul . 1. Elegi 3. . And that of Seneca : Nullus in campo sacer Diuisit agros arbiter populis lapis Senec . in Hippoli . act . 2. . yet the case was altered when Ouid writ thus : Gentibus est alijs tellus data limite certo : Romanae spatium est vrbis & orbis idem Ouid . 2. Fasto . . And vpon good reason was it altered , for as Boetius saith well : Dimensi●nes terrarum , terminis positis vagantibus , ac discordantibus populis pacis vtilia praestiterunt Boeti . in geomet . : And the great vse of limits and boundaries Plutarch sheweth , when he condemneth the vnsatiable couetousnes and illimited encroachment or inuasion of Romulus verie wittily : Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse nouit seruarentur , & iniuriae iudicium , si non seruarentur Plut. in Num . & pr . R. 15. . And this was the cause that Numa Pompilius the king of the Romanes did cause as well a publik perambulation to be made throughout his whole kingdome as priuate limitations & bounds betwixt partie & partie , and for the more solemne and effectuall confirmation and establishing of this course he did dedicate a chappell vpon the top of the Tarpeian hill vnto Terminus , and this idoll was made of stone Plut. in Num . : He was set in a chappell as not fit to be remoued : hee was made of stone as hard to be remoued : he was placed vpon a high rocke as not possible to bee remoued : and to this idoll nothing was sacrificed but cakes , pulse , and the first fruites of the field : the meaning doubtles of Numa was good , if it had not beene signified , & set forth by an euill meane . For to make him immoueable was to good purpose and agreeable to the truth of diuine iustice : Wherefore Salamon saith : that which also is commaunded in Deuteronomie : Thou shalt not remoue the auncient boundes which thy fathers haue made Deut . 27.17 Prou. 22. v 28. & 23. v. 10. : but the manner of diuiding lands & dominions according to the custome of nations is fully set downe by M. Littleton , though applyed to another purpose , & it is fiue-fold : 1. By setting out an equal rate of the lands to be diuided . 2. By the agreement of frends or intermediation of others . 3. By casting lots . 4. By writ de partitione facienda at the common law , & the action de herciscunda familia at the ciuill law . 5. By making an vnequall partition equall , by a forrein reseruation Littlet . lib . 3. c . 1. . Distinctions likewise of the degrees of men hath beene in all nations , in all ages established obserued and vsed . For the aduancing of noble men aboue them of lesse note ; and the preferring of the gentleman before the yeoman , and peasant is very ancient , and hath beene vniformely reteigned : neither is it to bee maruelled at , for nature her selfe hath tought the nations her schollers this lesson . Trauaile through all her kingdome , that is through the whole world , you shall find this difference in force and of great validitie . Consider the scituation of the celestiall orbes , and ye shall note , that the fierie heauen is placed aboue the chrystaline , as more worthie , both these aboue the firmament , the firmament aboue the other Spheares as surpassing them : Marke the birdes of the ayre , ye shall perceyue that the Eagle , the Phaenix , and the Parott holde preheminence aboue the rest . Looke vpon the riuers , ye shall obserue Euphrates in his forme and compasse of his streame to be more excellent then Ganges : Ganges better then Danubius , Danubius better then Tagus , Tagus then Padus , Padus then Tempse , Tempse then Seuerne : Note the fishes of the sea : yea shall find these to haue place aboue the rest the Whale , the Dolphin , the Sturgeon , the Salmon , and the Conger . Cast an eye vpon the beastes of the field , the Lyons , the Pardes , the Elephants , and Panthers do excell : looke into the bowels & matrice of the earth , ye shall haue gold , siluer , brasse , to exceed all other mettals : search into the inwards and the very closet of nature , the best of the grosser stones are the Loadstone , the marble , and the Alabaster : amongst the precious stones , the Diamond , the Topas , the Turkoise , the Smaragde , the Saphire & the Chrysolite . Wherefore the difference of estates , & degrees is well limited and expressed by the custome of nations & the discrepance betwixt noble and ignoble well constituted , which first I will generally handle , & as it were opening the signification of the words : and afterward more fully & particularly as drawing it in a map by pencill . This world nobilis if it be generally taken , extendeth as wel to gentlemen as to them which by preheminence we cal noble ; for nobilis is quasi noscibilis either for his stocke , or for vertue : the nobilitie of stocke or bloud hath been more obserued of the Hebrews & Grecians ; of vertue by the Romanes and them of the Northerne regions : & so he hath beene accompted ignoble , who hath not beene known , nor noted for some eminency , & rarenes , according to the verse : Solus vbi in siluis Italis ignobilis aeuum , Exigerit :

Amongest the Graecians at the first , they onelie were accompted noble , who could deriue their pedigrees from kinges or princes , or some other great and famous men ; as from Hercules , Cecrops , Aeacus , and the like , or such as by publike decree , and singuler demerit had obteined a crowne of gold , or some statue to be erected for them : And amongest the Iewes , they onelie were accompted noble , which descended from the stocke of Aaron , or the kinges of Israell and Iuda . But the Romanes were farre otherwise minded : for as Salust saith , Hostem ferire , murum ascendere , conspici dum tale facinus facerent properabant , eas diuitias , eamquè bonam famam magnam nobilitatem putabant Salust . in Iugurth . . And an other Romane saith , Genus qui laudat suum aliena laudat Senec . . And an other namelie Ouid : Nam genus et proauos & quae non fecimus ipsi vix ea nostra voco , Ouid . Metamorph . lib . 13. which golden saying so much pleased that worthie and noble knight Sir Philip Sidney , Learninges champion , Englands miracle , Europes fauorite , of whom the wordes of Horace may be verified , if euer they might be truely pronounced of any : Dignum laude virum Musa vetat mori . I say they so much pleased him , that he vsed them for a mot : Ouid . And I know not whether Ouid his inuention , or Sir Phillippes election be more to be commended : And nobilitie without vertue and merit was accompted as an image without life : For Salust saith , Reliqui sunt inertissimi nobiles , in quibus sicut in statua praeter nomen nihil est additamenti : for what difference was there betwixt Ciceroes statue , and Ciceroes drunken sonne , sithence both of them had the name , neither of them the qualities of Cicero . But as well the Graecians as the Romanes did agree in this , that for the rewarding of vertue , and the honoring of desert , and the animating of others , they did allow Scutchions and Armorie , Crestes and Cognisances to men of speciall note : Which our auncestors ( saith Plinie ) the representations of their dead fathers were proposed to view , their countenances were resembled and engrailed in their Armorie , that there might be some ornaments to decke and beautifie the celebration of publike funerall .

Now to speake more particularlie of the degrees of men , according to the Law of Nations : The degrees of Citizens are to be vnderstood these , which make a difference by state or place , not by sexe as Bodinus grosselie imagineth Bodin . lib . 3. de rep . c . 8. : for if there were none but males in a citie , yet it should be a citie : otherwise how was Rome a citie before the entermariage of that people with the Sabine dames Liui . lib . 1. . By the customes of Perusia and Florence euery one that followeth the standerd , and is initiated & entred into militarie profession doth presentlie of a yeoman become a gentleman Bartol . in lib . 1. de dignit . ciu . . But in Fraunce as Bodinus reporteth , gentrie is not gained by vndertaking seruice in warre , but by continuing in the same : if their issue or posteritie do also mannage armes , their issue and posteritie are reputed gentlemen Bodin . lib . 3. de repub . c . 8. . But the Venetians doe measure gentrie and nobilitie by Senatorie state : yet I take it to be after the maner of the auncient Romanes , who did not accompt any Equitem Romanum , which was not a Senators sonne : yet manie meere soldiers were admitted of the Senate : Which facilitie of the Romanes in bestowing dignities , did afterwards turne to their great daunger and molestation : for C. Marius was onely a soldier , hauing spent his verie Consulships , euen sixe Consulships in warres , and the seauenth should not haue been vnlike to the rest , if God had not preuented him by death : and continuallie before that time hee was employed in warre , either vnder Scipio the sonne of Paulus Aemilius , or some other great Capitaine : But this man being more in conuaie then counsell , did more hurt then profite the Romane common weale . So did Iulius Caesar : so did M. Antonius , though these later were somewhat more then meere souldiers . But amongest the Aegyptians none could be souldiers , but the Calasyri , and many yeares after when it was vnder the dominion of the Sultanes , the Memmeluci , who therefore had speciall immunities & liberties graunted vnto them : but a meere souldier amongest the auncient Romanes , though he were of excellent desert , yet was accompted but as a plebeian , and not noble , which may easily appear by the speech of L. Siccius Dentalus made in the Senate house , who boasted that he had serued in warre fortie yeares for his countrie , that he had fought in an hundred and twentie battailes , that he had receiued fortie and fiue woundes , and twelue of them in one day , and all of them aduerso corpore encountring the enemie face to face , that he had purchased fourteene cibicall crownes , three obsidionall , foure-score and three golden chaynes , a hundred and three-score golden bracelets , ten goodlie speares , fiue and twenty faire and costlie arming saddles Dionys . Halycar . : Yet this man hauing no other meanes to attaine to gentrie and nobilitie , was accompted of them in the number of ignoble persons Salust . in bel . Iugurth . loq . de Mar. . Augustus Caesar a notable wise Emperour did supplie the want of Senators with rich men Tranquil . in August . , though not verie wise , because he perceiued that the notable order of Senators , which stoode much vpon cost and expence , ( wherupon I am perswaded these wordes issued from him , Duas habeo superbas filias , Iuliam et Rempub . Macrob . in Saturnal . ) would otherwise vtterlie fall to the ground : But in other respectes he did wholie fauour such as vertue had ennobled . For Aemilius Scaurus , though he were a poore man ( pouertie is no dishonestie ) yet he was noble Valer . Max. lib . 2. , for sometime nobilitie is seuered from riches : Therefore Tacitus saith of Cassius , and Syllanus : Alter opibus vetustis , alter generis claritudine excellebat : yet a man may be noble , and verie rich , as Tullie saith of Roscius , That he was , nobilitate et pecunia municipij facile primus . But it is good to be knowen whether base artificers are to be enseated , and bestowed in places of worth and credite . Xenophon reporteth that amongest the Aegyptians , Scythians , Persians , Lacedaemonians , Corinthians , they which did vse base and mechanicall trades were excluded from places of accompt , and were accompted ignoble Xenoph . in oecumen . . Aristotle likewise writeth , that amongest the Thebanes it was a Law , that no man could be admitted to place of honor , vnlesse he had left off merchandize by the space of tenne yeares before Aristo . in polit . . And the Romanes followed them in this : for as Liuie saith , Quaestus omnis indecorus patribus visus est . And Hippolytus a collibus writeth , that it hath been generallie receiued , that whosoeuer is a gentleman , or possessed of an honorable estate , beginneth presentlie to be ignoble by vsing merchandize , vnlesse it be otherwise prouided by the Statutes of some particular Prouinces or Cities : as by the Statutes of Venice , of Florence , of Genoa , of Luca , and of London , where manie of their Senators , magnificoes , clarissimoes , illustrissimoes are Merchants Hippolyt . a collib . in lib . de princip . . And it is the rule of a diuine , morall , and politike writer , that husbandmen , carpenters , potters , caruers either in wood or stone , and the like workmen , are wholie to be debarred from honorable or iudiciall places Ecclesi . c . 38. . And by the imperiall Lawes , Merchants may not be aduaunced to anie honorable estate L. ne quis de dignit . C. L. si cohortat . de cohort . L. humil . de incest . C. : neither might they haue anie regiment of souldiers L. 1. negotiator . ne milit . C. . And Plato In lib . de legi . , Aristotle Lib . 7. polit . c . 9. and Apollonius Philostrat . , doe hold merchandizing to be an enemie to vertue . Neither will Ciceroes distinction be of anie force against them , where hee saith : Mercatura si tenuis est , sordida putanda est : si magna , et copiosa , multa vndique apportans , multisque sine vanitate impartiens , non est admodum vituperanda Cicer . lib . 1. offic . : For though his commendation of merchandizing bee not verie great : yet his opinion in this is not greatlie good : for Maius et minus non variant speciem . And the ironicall saying of the pyrate to Alexander , was a confutation of this distinction Cicer . 3. de repub . , who tolde him in plaine tearmes , That because he did robbe on the Sea with one small pinnasse , he was accompted a pyrate : but because Alexander did the same with manie great Gallies , therefore he was tearmed the gouernour of a fleete : For as Lucan saith well : Facinus quos inquinat aequat . And the same Lucan calleth Alexander Luca . lib . 10 , Foelicem predonem , a fortunate Robber : And this aunsweare of the pyrate to Alexander is liked of Ciceto himselfe Cicer . 3. de rep . , of S. Augustine D. August . lib . 4. de ciuitat . dei . , and Alciat Alci . 1. consi . 1. .

Likewise it hath been a question sometime sifted , whether he that vseth husbandrie may properlie , and in strict reason bee accompted a Gentleman . In the common Law wee haue this rule , that where a Gentleman is sued by the name of Husbandman , he maie saie , that he is a gentleman , and demaunde iudgement of the writte , without saying that he is no husbandman : for though a gentleman may be an husbandman by the said Law , yet he ought to be sued by his more worthie addition 14. H. 6. 15. 1. E. 4. 2. 21. H. 6. 55. 12. H. 6. 8. . Neither doth our Law in this dissent from the practize of other Nations . For Cyrus did verie often boast of his labour , and industrie in matters of husbandrie Cicer . lib . de senect . . And these noble Romanes , Serranus , Curius , Cincinnatus , Torquatus , and Cato , are commended of Historians and others , for this that they did establish the safetie of the common weale by their handes , which were worne and growne rough by the plough , and labour of husbandrie Valer . Max. Varro . Cicer . Liui . Florus . . In Iewrie and Aegypt how much it hath been esteemed may appeare by this , that neither could Pharao pleasure Iacob more to his contentment : Neither could Ioseph procure a greater pleasure vnto him , then the meadow ground , and pasturage of Gozan , in which hee inioyed the comfort of his age . In Scythia , Arabia , Parthia , Arcadia , and other places ; as India , Thracia , Mesopotamia , Sicilia , &c. Husbandrie hath been greatly practized , and in other Nations not so much addicted to husbandry , exceedingly praised . Diuines haue in all ages & countries possessed the reputation , either of gentlemen , or of reuerend , right reuerend worshipfull , and right worshipfull men , and that vpon good reason , which by and by , ( God giuing leaue ) I will demonstrate . Whether Phisitians may beare anie of these aforesaid titles or no , it hath been in all ages questioned , in some debated , in this decided : Though amongest the auncient Romanes , phisicke was accompted base and sordid by the space of sixe hundred yeares L. Thais § Lucius de fidei commiss . : yet about the imperiall time it was receiued into the citie L. quidem C. de decuri . , and highlie esteemed . But the Hebrewes and Graecians did alwaies make great accompt of the professors of that science , and so did other nations also , when the Arabians first of all had seuered Surgeans , Emperickes , and ignorant Apothecaries from Phisitions : But let their accompt be great in a citie or common weale , yet they must giue place to the profession of the Law , as being a princelie discipline , the center of common weales , and the science of gouernment , as I haue at large shewed in the first Chapter of my direction to the studie of the Law : And this euen Philosophers haue adiudged Plat . in Gorg . Aristo . lib . 1. polit . c . vlt . .

But now whether meere Grammarians and Rhetoricians , I meane sole & single professors of these Artes may challenge to themselues the title of gentrie and worship , it hath verie much been doubted . Cicero saith of Rhetoritians : Rhetores M. Crasso , et Domitio Censoribus , claudere ludum impudentiae iussi Cicer . lib . 3. de orat . . But after his time it was receiued into the citie , and obteined manie great immunities : yea euen these which taught boyes their Alphabet , or first letters were so rewarded l. 6. de exe . tut . l. vlt . in fi . de mu . et ho . l. 2. p. vlt . de vac . mu . : Vaspatian graunted and allowed to Rhetoricians great franchises , and priuiledges , Dio . Cassi . in Vespa . Gelli . lib . 1. c . 11. which made Rhetoricke to flourish in that common weale in these times : Tacit. lib . 11 annal . For as Tacitus saith well , Sublatis studiorum pretijs , etiam studia peritura , vt minus decora : and before him Plato affirmed it : Artes illuc confluunt , vbi ipsarum pretium est Plato in maior . Hippi . . And how much it flourished in other common weales may appeare in that Demosthenes , Aristotle , Demetrius Phalereus , eloquent and wise men were credited with the honor of embassage , and such haue beene in all ages well esteemed , vnlesse it were that they haue miscaried at the hands of some couetous churles , and pennie-fathers , or vainglorious pictures of mankind , which as they measure a mans strength by his stature , so they way his inward abilitie by the outward apparell of his bodie , whose childish humour Iuuenall gibingly toucheth .

didicit iam diues auarus Tantùm admirari , tantùm laudare disertos Vt pueri Iunonis auem .

This is to esteeme a booke by the couer , a horse by the his trappinges and caparison , and a Greyhound by the collar : O quantum est in rebus inane ! When will worldlings iudge vprightly of things ! neuer : for the blind cannot iudge of colours , r : and M. Brutus was wont to call such gawdie , & garish fellows , which were rather fine by the tailors needle , then the vniuersitie learning , aureas pecudes .

Hauing particularly and seuerally spoken , and as it were by way of anatomie , of the diuers callings , estates , and degrees of men , it is good to marshall the callings and degrees in order as well as I can conceiue them . In the first place must bee reposed the person of the king , who as the image of God agreeth with euerie man , as the lieuetenant of God with the magistrate , as the annointed of God to rule & gouerne with neither of the former , but with God onley , whose paterne he is : after the king if we wil discourse according to reason & ancient example the chiefest of the clergy are to be ranged : for as Iosephus noteth , the Hebrews had but 2. sorts of nobility the one sort of the stock of kings who did successiuely reigne : the other of the linage of Aaron which only were made priests : for that people reposing all their good in religion and the worship of God , did accompt such holy men to be very noble : therfore whensoeuer God did threaten the destruction , & ouerthrow of that people he doth threaten them thus , that the state of the priest and vulgar sort of men shal be alike Esa . 24. Ose . 4. ; and they which in ancient time did inhabite the Cellicke or Northwest part of France did preferre their Druidae , who had charge of their sacrifices and iudgements , before all sorts of people of the knights , and of the nobilitie Caes . lib . 6. de bel . ciu . Plut. in Anton . : So the Turkes and Arabians haue appointed certaine great men called Mophtae to be their high priests , whom they do greatly reuerence and the summe of all weightie ecclesiastical matters they referre vnto them . The next place should be possessed of Dukes , Marquises , Earles , Vicounts , Barons , &c.

The tenth Chapter . That in the law of tributes , subsidies , and prerogatiues royal , all Nations haue consented .

AS it behoueth euerie Monarch to haue a watchfull care of his subiects good , and to bend the force of his minde to the preseruation and maintenance of their safetie and good estate : so subiects should not grudge to pay vnto them tributes & subsidies , and other publike impositions , that all necessarie charges may bee substantially defraied , al conuenient designes produced into acte , and solemnely exploited . Princes therefore must haue great care of the furnishing of their treasurie ; for who is ignorant that money is the strength and sinew of a state , howsoeuer Machiauell Machiau . in lib . obseru . in Liui . paradoxically would inferre the contrarie , a man very vnfit to defend paradoxes : by it the bounds of the Monarchie are garded , the pore are relieued , they that haue deserued well are rewarded , the publike and necessarie businesse of the common-weale is dispatched , and therefore that countrie prouerbe Pecunia sine peculio fragilis . may verie well bee admitted into the princes eare , Money without stocke is frayle and brittle : And if warre bee to bee vndertaken or maintained , how can this bee done without mony , sithence soldiers are neuer kept in order without salarie , and reward payed and distributed vnto them . Consilium principum fuit ( saith Pollio ) vt milites , quo solent placari genere , sedarentur : promissis itaque per Martianum aureis vicenis , & acceptis &c. Tr. eb . Pollio in Gallien . Philip king of Macedonia was wont to say , that there was no sconce , tower , or forcelet so strong , into which an Asse lodened with money might not enter , and it hath beene noted of Phillip late king of Spaine , that he effected more by his Indian gold , then his Spanish yron . Therefore Horace saith : Aurum per medios ire satellites Et perrumpere amat saxa , potentius Ictu fulmineo Horat . 3. Carmi . od . 16. . Therefore it is good for a prince in time of peace to prouide for the maintenance of warre : for that which is said of a citie or common weale may bee applyed to a prince or Monarch : — foelix Tempore qui pacis bella futura timet . And how can prouision bee made for an armie without mony , & how can an army fight without prouision : for as Cassiodorus saith : Disciplinam non potest seruare ieiunus exercitus , dum quod deest semper praesumat armatus , necessitas moderamen non diligit : one of the ordinarie meanes vsed in all kingdomes for the dispatch and accomplishment of publike affayres hath from all antiquitie beene tribute payed by the subiectes to their prince , a thing as ancient , so necessarie : and Tacitus wisely collecteth the conueniencie of it : neque quies gentium sine armis , neque arma sine stipendijs : neque stipendia sine tributis haberi possunt Tacit. lib . 5. annal . : The Romanes did maintaine their warres by tribute ; for after Pompeies victory which hee had against Mithridates , they had out of Asia maior six millions and a halfe , out of the lesser Asia onely two millions , which none will maruell at , that knoweth Asia to bee a fertill and fruitfull countrie , greatly replenished with the varietie of the fruites of the earth , with the largenesse of pasture , and the ranknesse of the soyle , and the multitude of such thinges as are transported into other countries for sale : but the tribute of other prouinces was so slender , that it scarcely sufficed for the defence and protection of them Cicer . pro leg . Manil . . And all France did not yeelde the thirde parte of that tribute vnto the Romanes , which some part of Fraunce did afterward pay vnto their kings , as Alciat hath obserued Alci . l. 27. de V.S. : neyther am I of the minde of Phillip Commineus , who denieth generally that princes may command tributes Philip . Commi . comment . : for I make no doubt but a conqueror may commaund tribute , and all that come in vnder the conquerour by the law of nations : and therefore the Romane generall saith vnto the French men : Iure victoriae tributum vobis addidimus Tacit. 4. histor . : And Iustinian doth commaund that tributes may be imposed vpon the Zani being conquered vt victos se agnoscerent : and the Iewes though they had beene clearly conquered ( for their citie was sacked , their temple possessed , their Sanctum sanctorum looked into : for as Florus saith : Impiae gentis arcanum illud vidit sub aureo vti coelo Flor . lib . 3. histor . : ) yet craftily after their manner , because they would haue Christ to haue challenged their earthly kingdome , by that mean to draw him into hatred with Caesar , they demaunded of him whether it were lawful to giue tribute to Caesar : but he that alway professed , Regnum meum non est ex hoc mundo , gaue them a bone to gnawe , Date quod est Caesaris Caesari , and quod Dei Deo Mat . 22. : for in deed tributes are allowed by the law of God Deut . 20. : & therefore Cicero saith excellently , that tribute is victoriae praemium , poena belli Cicer . in verr . 5. : And Orosius almost as excellently , that it is vinculum pacis , monumentum belli Oros . lib . 5. c . 1. . And though the Spaniards , Germanes and English , doe seeme rather to offer a tribute to their Monarch then the Monarch to commaund it , ( for the curtesie of England is great , the clemencie of their princes greater ) yet for England thus much I dare speake , & vnder the rule of modestie protest , that sithence the vniuersal conquest of William , who first commanded and imposed tribute vpon this land ( for conquerours may commaund ) tribute and subsidie haue beene as iustly both by the law of God , and the law of nations , payed in England as in Iewrie , yea and iustly continued as a remembrance of a conquest : wherefore it is diuinely said of that great diuine Tertullian : Agri tributo onusti , hominum capita stipendio censa , notae sunt captiuitatis : Lands charged with tribute , polles with taxe , are signes of conquest Tertull . in Apolog . . Bodinus in my mind giueth good counsell to princes to set a great impost vpon such thinges as corrupt the manners of their subiectes , as namely vppon these compounded perfumes , these paintings of the face , these Margarites , these Marchpanes , Wines , Bodin . lib . 6. de rep . c . 2. and Tobacco : but vainely and contradictorily to himselfe doth Bodinus say , that Haec principi prohibenda non sunt , nec si velit possit , prouing it out of the fifth booke of Plato because such is the nature of men , that these things quae sanctissime vetantur , auidiùs expetant ; By this reason there could bee no fault , nor default forbidden : as for Bodinus I excuse him thus : Nullum fuit magnum ingenium sine mixtura dementiae , which Seneca obserueth Senec . in fin. lib . de ira . : And as to Platoes authoritie this is but errare cum Platone , Plato did erre with Plato . Sometime hee did erre , as in the discourse of intemperate banquets , in the brutish lust & inward itch of Alcibiades , in his fond & vnclean fables : & of Athenaeus hee is more sharpely noted to bee inuidissimus , rabiosé maledicentissimus , mendacissimus , improbissimus , ridicule ambitiosissimus : lib . 4. 5. 11. & by his darke & amphibologicall writing , he is said to be the cause of the death of that thrise-worthy Romane M. Cato , Plut. in Cat . whose death at Vtica gaue him his dismall name , and Solons lawes though hee were his ancestor , a great deale wiser , and farre more imployed in matters of estate , could not content him but hee must haue visioned lawes , such as were neuer vsed sithence his time , and therefore as it is likely , neuer shall be vsed : For what is it that hath beene , that that shall bee , and what is it that hath beene done , that which shall bee done : And there is no new thing vnder the sunne , Eccleast . c . 1. and that that shal be hath now beene Eccles . c . 3. . But to come to my purpose again , and to another prerogatiue of princes .

Princes likewise maintayne their realmes and their estate royall by importing and bringing in such things , as be of value or price . Wherefore Liuie noteth of Carnileus Consul Liui . lib . 9. , that all the brasse and all the siluer he brought into the treasurie : and he saith of Fuluius , that hee brought out of Spaine into the treasurie an hundred fortie two thousand pound of siluer : and an hundred twentie seuen thousand pound of gold : and of Camillus Liui . li . 3. , that when hee had ouercome the French nation beyond the Alpes , hee brought in a hundred threescore and tenne thousande pounde of siluer , and of brasse three hundred twentie thousand : and of Flaminius Liui . lib . 34. that he brought out of Greece eighteene thousande pounde of siluer in bullion , and two hundred and seuentie thousand of plate , fourescore and foure thousand shillinges , and three thousand seuen hundredde and fourteene poundes of golde : a buckler of golde entier . Of Phillippes money a hundred fortie and fiue thousande pounde , and an hundred fourteene pounde of golden crownes , which the cities bestowed on him . And Paulus Aemilius Liui . lib . 45. that president of a capitaine , when he had surpised Macedonia , brought into the treasurie a thousand and two hundred sestertians . And Caesar hauing ouercome Fraunce , foure thousand sestertians . Fabius Maximus Liui . lib . 27. brought in fourescore and three thousand pound of golde , beside great quantitie of siluer . And Scipio commonlie called Asiaticus Liui . lib . 36. 38. 39. did bring in after his victorie had against Antiochus , two hundred thirtie and three poundes in golden crownes , two hundred fortie and seauen thousand poundes of siluer , of Phillippes rials a hundred fortie thousand , and a thousand and twentie foure poundes of gold . Who can number that which Cato brought from Cyprus Flor . lib . 3. : that which Pompeie Lucan . lib . 3. brought from the Easterne & Southern warres ? These by doing thus did make that common wealth great : others by doing the like may make others like . And Alexander the great did replenish all Greece with siluer , when hee had atchiued the victorie of Darius and the Persians : Looke vpon my whole armie ( said he ) they which before had nothing but coates of steele , do now lye in siluer beds Curti . lib . 8. . And much did Anniball enrich the Carthaginian treasurie , when after his victory at Cannae he sent into the Senate of Carthage Liui . lib . 23. , three strike of golden ringes , and so compassed them by measure , though by number he could not D. Augusti . lib . 3. de ciuit . dei c . 19. . And in the holie Scripture it is reported of king Salomon : That the weight of gold , which was brought vnto him from foreine countries yearely , did amount to the value of sixe hundred , sixtie and sixe talents of gold , beside that which his collectors leuied vpon his subiectes , and tributaries , and the custome which he had of merchants , together with the tribute of the Kinges of Arabia , and the Lieutenants and Gouernours of nations any waie subiect or subordinate vnto him 2. Chronic . cap . 3. 3. Reg . cap . 10. .

Custome likewise is a prerogatiue and benefit to which Kinges and Princes are by the Law of nations entitled : It was of the auncient Italians called Portorium , because it was to be taken of thinges that were to be caried out , and to be brought in Cicer . in oration . pro leg . Manil . . The Turkish Emperour taketh the tenth part of the value of the thinges that are to be caried out of straungers , and the twentieth part of his subiectes Bodin . lib . 6. de rep . c . 2. . And the king of Spaine taketh in India the tenth part promiscuè , as well of straungers as his subiectes The booke entituled ( The present state of Spaine . . And by the Law of England , Merchants strangers being made denizens , shall paie custome as straungers that be not denizens 11. H. 7. ca. 14. .

It is good for euerie Prince to haue speciall care and regarde of mainteining merchandize , because by that meane , not onelie thinges profitable are brought into a kingdome , but manie thinges are caried out to be sold , and exchanged for publike good : and manie sodain chaunces do arise , wherein no small daungers are put aside by their meanes . Plutarch reporteth , that in Solons time merchandizing was held in great price , and he giueth this reason for it , because by that meane diuers foreine commodities were brought in , friendship was procured with straunge kinges , experience in manie thinges was attained Plut. in Solon . . And the vse of merchandizing beeing once taken awaie in the kingdome of Naples , was the cause that all the prouinciall people was presentlie brought to pouertie Pont. c . 45. de liberalit . . And for the alluring of straunge Merchants into a Realme , their priuiledges must be inuiolablie obserued , especiallie at the times when they hold their martes , or fayres , that they may safelie goe , returne , tarie , and staie with their wares , which diuers of our Statutes of England haue prouided for , Magna Chart . cap . 28. 9. E. 3. cap . 1. et 2. 14. E. 3. cap . 1. 25. E. 3. cap . 4. 27. E. 3. cap . 2. Of this matter Kings and Princes should haue good regarde : for Platoes admonition is to be followed , when hee saith , Peregrinorum commercia respub . ne auersetur Plat . lib . 12. de legib . . And Amásis the Aegyptian king was so glad of straungers resort and their commerce , that he graunted to the Graecian merchantes meere straungers , the vse and exercise of their rites and religion in their owne language , and for their more expedite negotiation in that Realme , there was a certaine place appointed , namelie Naucrate for the receit of foreine wares Herodot . lib . 2. . And Aristotle is of opinion , that a principall citie must be erected in some conuenient place wherto thinges which be necessarie to this life may be abundantly conueyed , and this he would haue situate neere to the sea Arist . 5. polit . c . 7. et 6. politic . c . 7. . And the people of Megara did iustlie complaine against the Athenians , who had vtterlie secluded them from their Hauens , and from marting with them Plut. in Pericl . . This therefore must needes be a good meane to encrease the riches of a kingdome . But it is the Princes prerogatiue to permit and to forbid merchant straungers at their pleasure and discretion : and therfore the Statute of Magna charta hath in it a good clause for this purpose : Omnes Mercatores , nisi ante prohibiti fuerint , habeant saluum conductum exire , & venire in Angliam &c Magn . char . cap . 28. . otherwise some Merchants may sowe bad seede , euen the seede of seducement of the Princes lieges , shrowding themselues vnder the curtaine of exposing wares to sale : But these which are honest Merchants , and of iust meaning are not to be forbidden .

Other benefites , and prerogatiues there be , which the Law of Nations doth allow to Princes in regarde of their exceeding costes and charge that they are at in the defending , and gouerning their Realmes : For though I haue shewed before , that a masse of wealth almost infinite was brought into the Romane treasurie : yet he that considereth their great expence , and exceeding charge , will , I am sure , confesse , that this great wealth had neede to haue been verie well husbanded for the mannaging of their ordinarie affaires , otherwise it would neuer haue stretched to the defrayment of their charges . Their forces did consist of two hundred thousand foote-men , of fortie thousand horse-men , three thousand warlike chariots , two thousand shippes , a thousand fiue hundreth pinnasses , fourescoore gallies , double furniture of armourie , and three hundred Elephants , and in their shippes were a hundred thousand souldiers , and marriners Lipsi . de magistr . Rom. lib . 1. c . 4. 5. : So that Cicero saith plainlie , that the Romanes , notwithstanding all their great reuenue and treasure , were scarse able to mainteine their armie Cicer . parad . 6. . In consideration of which great and extreame charges , the subiects of all Nations haue giuen and yeelded to their princes , diuers princelie and roiall benefites and prerogatiues for the magnifying of their estate : As first the vse and benefit of salt Mines , ( for as the Italian prouerbe is : Vino , oleo , è sale suono mercantia reale : Wine , oile , and salt , are the merchandize roiall . ) And the Veientines in auncient time being ouercome of Romulus , were straitlie forbidden to absteine from the salt Mines , which were about the mouth of the riuer Dionys . Halycar . lib . . And these salt Mines were brought into better forme , and were made more commodious for the common weale vnder the reigne of Ancus Liui . lib . 1. . And Aurelius victor doth note , that at the self same time an impost was made , and ordeined for the same Victo . lib . de vir . illustr . . And an other impost was made when Liuie was Censor , who of this word Salt , had the name of Salinator giuen him Liui . lib . 29. . And Paulus Aemilius hauing subdued the Macedonians did reserue the prerogatiue of salt vnto the Romanes , and did forbid the Macedonians to vse any salt , that perhaps they might finde out , without the permission of the Senate . Yet the commerce of Salt he did afford to the Dardanians or Troians , the auncient progenitors of the Romanes Liui . lib . 45. . And the Publicanes had Salt in farme , as may appeare by Ciceroes report , and other authorities Cicer . pro le . Ma. l. sed et hi . D. de publica . l. ● . C. pro fo . l. si quis C. de vect . et com . . A princelie thing doubtles it is , and for it there hath been great contention betwixt great estates : as namelie betwixt the Burgundians , and the Almannes , betwixt the Hermunduri , and the Catti , together with that of Perusia vnder Paulus the third , and that of Fraunce vnder Frauncis the first , and diuers others daungerous quarrels haue been about pretensed titles to Salt Ammian . lib . 28. Tacit. lib . 13. Guicciar . lib . 12. 14. 16. 18. 19. . Neither is it to be meruailed that Princes make so great accompt of it : for Homer accompted it diuine , if it be true which Plutarch reporteth of him Plut. in symp . 5. q . 8. . But what shall we saie now of the other entralles of the earth : as Pitch , Chalke , lyme , quarrie stone , brimstone , and the like : As for gold and siluer I make no question , but by the Law of nations they belong to the Prince . I would aske this question , Sithence God hath treasured in the mines gold & siluer , & other mettals : for whom hath he treasured them ? if all the Mines of gold & siluer should be in the lands of one subiect : is it lawfull for him to coine money of this siluer & gold ? no verilie , as may appeare by that question of our Lord and Sauior , when he asked whose stampe or impression the money did beare Matt . 22. ver . 20. , what shall he then do with it ? shall he make plate of it : by this mean a subiect shall haue plate , & the king none , which is not conuenient : Therfore I take the iudgment giuen in the case betwixt the Q. Maiestie & the Earle of Northumberland , touching the title of these roiall Mines to be sound and grounded vpon inuincible reason : howbeit the graunt was omnium et singularum Minerarum : for the diuersitie is there by Wray well taken , that there be two sorts of Mines , mines roiall , & base mines ; Now mines roiall may be subdiuided into two other kinds , those which contein in them siluer or gold entierlie : or which haue brasse or copper in them , and haue some vaines of gold intermixed , both these belong to the Prince : for the gold as magis dignum attrahit ad se minùs dignum : But such as haue in them meerly brasse , iron , copper , or lead , may belong vnto a subiect by special title 10. Eliz . Com̄ 310 : Informac . pur Mines . , notwithstanding Dio a wise & iudicial writer maketh all Mines of mettall in general publike , as belonging to the Prince or common weal Dio lib . 52. . And mines of Pitch Cicero allotteth to the Prince by the like censure Cicer . in B●ut . . And doubtles there is great reason for their opinion , because it should seeme that these mettalles were created of God , not for a priuate , but a publike vse at the first : for iron and steele do principallie serue for armour , and there is a rule in the Ciuill Law , De armis publice asseruandis Nou . 85. . Pitch is principallie ordeined for the glewing together of the bordes of shippes , and shippes were principallie ordeined for the common weale . Copper and Brasse haue in all ages and common weales been compaignions of the aforesaid Mettals , and haue been vsed with them , and passed with them as the shaddow with the bodie . Yet if a Prince haue transmitted his title or right vnto the base Mines to anie of his subiectes , I think he cannot by roiall claime wrest them out of his handes . And this Suetonius reckoneth as one of the concussions of Tiberius , who tooke from cities and priuate men the Mettals in which they were lawfullie interested Suetoni . in Tiber . c . 49. . And Laurentius Medices hath been touched likewise for the same fault Molin ad Dec. cons . 292. , that the landes and goods of Traitors and Felons doe by the Law of Nations belong to the king or Monarche hath been afore cleerelie prooued in the second Chapiter of this Treatise . But what shall we saie of Treasure found in the earth will not the Law of Nations assigne it to the Prince ? Yes verilie , notwithstanding Plato his straunge conceit , that they should be immobiles , and Dijs inferis sacri : for should there be no vse of so pretious thing , and one of the most gorgeous creatures of God . It is an argument of a froward & a brutish humour to make vse of quarrie-stone & not pretious stone , of coal , and not of gold . The Romanes were as superstitious as Plato , but a great deale wiser , for they dedicated a temple to Pecunia that they might be pecuniosi , stored with money D. Augstin . lib . 4. de ciuit . dei . c . 21. . Wherefore Iuuenall by his leaue was deceiued , when he writ : — et si funesta pecunia templo , Nondum habitas , nullas nummorum ereximus aras Iuuen . Satyr . 1. . But it is no meruaile if this poet were ignorant that it was idolized : for Varro writeth , that to many of the learned their gods , their sacrifices and ceremonies were hidden and vnknowne , but M. Stamfords reason wherefore treasure should belong to the king is vnanswerable , and it is this quia dominus rei non apparet , ideo cuius sit incertum est 22. Assis . pl. 99. : and it is a currant rule in all nations , In ambiguis casibus semper praesumitur pro rege . Adrianus Caesar made a lawe as Spartianus reporteth , that if any man had found treasure in his owne ground himselfe should haue it : if in an other mans hee shall giue the half to the owner of the soile : if in a publike place he shall diuide it equally with the treasurie . This law was abrogated by other lawes following , and reuiued by Iustinian , but now and long time agoe the ciuill law hath transferred it to the prince in whose realme it is found l. 3. §. Nerati . D. de acqui . posses . : and it is a firme conclusion in the common law : Quòd thesaurus competit domino regi , & non domino libertatis , nisi sit per verba specialia Fitzh . Coro . 281. 436. .

The eleuenth Chapter . That all Nations haue both secretly and by the course of their ouert actions , acknowledged and yeelded to the truth of the lawes and commandements of the 2. table of the decalogue .

HOw far the light of nature stretcheth , may appeare by the liues of vertuous heathen men , who knowing that the sixe last precepts , which almightie God prescribed to his people were to bee obserued and kept , yet wanted grace to refer them vnto God , who ought to bee the marke of all our actions , and in regard of whom only they may be tearmed good : & M. D. Barlow in his deep & learned discourse against the shallow-headed Papist reasoneth soundly and prooueth by the Apostles words , quidquid non est ex fide est peccatum , & by other vndeniable proofes that such works could not be acceptable to God , because howsoeuer they proceeded from God , yet they were not referred to the glorie of God : for though God moued them to doe well , and some of them confessed : Est deus in nobis agitante calescimus illo : yet before the end he left them , because vainglory was their end , and so they did their suite at a wrong court . But now let vs particularly examine the obseruation as wel of the gentiles and Christians of these commaundements and ordinaunces . The obedience that children ought to giue to their parents hath bene straitly commaunded by God and seuerely enioyned by Emperours Exod . 20. v. 12. Deut . 5. v. 16. Acto . 4.19 . Pompon . l. 2. ff . de iust . et iur . pius Imperat . l. 1. C. de alen . lib . : and Homer diuinely according vnto the wordes of this precept doeth threaten that the life of disobedient children shall not be long Homer . in Iliad . : & Plato hath an excellent speech to this purpose : He which mainteineth his parents when they are old in his house let him thinke that his house shal be neuer be possessed of the like ornament Plat . lib . 11. de legi . : therefore it hath beene ordeined of God , that children which were disobedient to their parents , should be punished of the magistrate Deuter . 21. v 18. , & his iudgement is thus set downe : If any man haue begotten a stubborne and froward child which will not obey his father & mother , & being corrected continueth still in disobedience , let thē bring him to the elders of the citie , and to the iudgement gate , and the father shall say to the people : this our sonne is stubborne and despiseth our admonitions , and giueth himselfe to riot and incontinencie , then the people shall stone him , and he shall dye : that the euill may bee taken from the middest of you : Yea euen they which had only curst their parents were adiudged to death e : In former time hee that had slain his father or mother grandfather or grandmother , was first bet with rods vntil the blud trickled downe , & then being thrust into a sacke together with a dogge , a cocke , and a snake , hee was throwne into the bottome of the sea , and by Pompeis law it was prouided , that if the sea bee not neare , he should be throwne out to deuouring beasts . At Rome this fact was not heard of , till L. Ostius did slay his father , which happened after Hannibals warre Plut. in Rom. l. 1. Et l. paena . ff . ad l. Pomp . de parricid . Cicer in oration . pro Rosc . Amerin . et in orator . : And Plato his law is , that if a man in his furie or madnes do kill his father or mother , and they before their death do pardon him the fault , yet he is to be adiudged guilty of slaughter , of impietie , of sacriledge Pl. lib . 11. de legi . . But what shall wee say of Orestes , who did slay his mother because she did slay his father : though there bee diuers opinions which do acquite Orestes , as namely the opinions of Cicero Cicer . in Milon . , Paterculus Paterc . lib . 1. , and Quintilian Quintil . lib . 5. c . 11. : yet against them are Socrates Plat . in 2. Alcibiad . , Diodorus Diodor . l. 5. , & Aristotle Aristot . l. 2. Rhetoric . c . 5. , but why should we depend vpon the iudgement of man in this case , when it is manifest that the iudgement of God was in the highest degree , if we respect the paines of this life onely , executed vpon Orestes : for he was plagued with madnesse a terrible signe of the reuenging wrath of God .

And murder hath beene so much detested that , a beast which had slaine a man was commanded to bee stoned , and that his flesh should not bee eaten Exod . 21. v. 28. and by the ciuill law if a man be bitten of an other mans dog , the owner of the dog is chargeable vnto him that is hurt , because hee did not tie vp his dogge or musle him l. 1. §. sed etsi canis . ff . si quadrup . pauper fecet . : therefore Solon deuised a pretie punishment of such wronges , namely that the dogge who had by byting hurt any man should haue a clogge of foure foote tyed to his necke , and so should be yeelded vp into the hands of him whom he had hurt , which Plutarch calleth bellum commentum ad securitatem Plut. in Solon . . They which had killed a man in Greece did vsually flie to forreigne princes , and there if hee who was slaine was a stranger , they vsed to sitte at the threshold of the dore with his head couered with the sword wherewith he was slaine : if hee were one of the same countrie , the sword was broken in two , and the point of the sword was helde vnder one arme , the hilt vnder the other Sophocl . : a lamentable sight no doubt , but done to this purpose , that they which had slaine the men might by these forraine princes haue expiation of their fault , which expiation was fully as bad or rather worse thē the murther ; for the princes who were to expiate thē , did by inchantments inuocate and make suite to the wicked spirites , that they may absolue them from the fault which is done by sprinkling them seauen times with water , the predecessor of the Popes holiwater , and to this feate seauen garments were therewith sprinckled , then they kill a swine , a fitte sacrifice for the deuill : then they call vpon Iupiter Hospitall , praying him that he wold not vexe with furie the party that had offended : thus the absolution is worse then the offence , and like to that of the merry Monke : Absoluo te ab omnibus benefactis tuis , & peiorem te relinquo quàm accepi Erasm . in colloqu . . Then there are boughes spread along the houses , that the deuill might tread soft . Some of them washed themselues in the sea , till they had almost drowned themselues : murder is the forerunner of death : and that foolish solemnitie Catullus glaunceth at : Nec genitor Nimpharum abluat Oceanus , Likewise Ouid : Ah nimium faciles qui tristia crimina caedis Fulminea tolli posse putatis aqua . after this manner Adrastus fled from Thebes to Tydeus : Peleus fled to Patroclus , when hee being but a boy had slaine Clesonynus a boy likewise : & Paris though he had stolne away Helena the wife of Menelaus ; yet when hee had slaine Antheus Antenors sonne , whom he loued , he fled to Menelaus ( a great iudgement of God ) his very enemie for expiation , like to that iudgement of the almighty executed vpon Cosby an Irish-man , who when he had slaine the towardly Captaine the Lord Burgh , sought by-pathes , and had thought to haue fled from the slaine body , as farre as the Sunne is from the Moon , but the Lord put a ring into his snowt , and brought him backe againe , almost as neere to the murthered Lord as the grasse is to the earth : a fit admonition for these times wherein homo sacra res per iocum occiditur Senec . lib . de ir . : In Egipt and Babilon he which had slaine a man did penance by doing pilgrimage on the mountaines , and then sacrificing vpon the tombe of the dead , and so being cleansed of the Gymnosophistes . The Persians vnder the reigne of Semiramis did shaue the head of him that had slaine an other and confiscated his goodes : and caused him to go vppon burning coales or firebrandes , and then sprinckled him with water , the patterne of the Popes purgatorie Sard . Ferra● . de mor . gent . : The Iewes did vsually kill such by sword or by rope Card . Sigogoni . in lib . de rep . Hebr . : according to the commaundement of God . Qui effuderit sanguinem hominis in homine , sanguis eius effundetur , quia ad imaginem Dei fecit hominem Genes 9. v. 6. Matt . 26. v. 52. . How murther hath beene punished by the ciuill law , the canon law , and the common law of this realme , I haue shewed I hope sufficiently in my Parallele of the lawes , so that I shall not need here to rowle the same stone .

After the hurt of a mans owne bodie , nothing can happen to him worse then the abusing of the bodie of his wife : for ( as Salomon saith ) iealousy is the rage of a man , therefore he will not spare in the day of vengeance Prouerb . 6. v. 34. . This last did first cause the diluge : and after the diluge , the destruction of the people of Sodom and Gomorra voluptuously mingling themselues with the women of the Moabites , where there were twentie and foure thousand slaine Num . 25. v. 9. : For the vncleannesse of the Gabeonites with the Leuites wife , the whole tribe of Beniamin was destroyed Iud. 20. : By the law of Moises if any had committed adulterie with another mans wife , the adulterer , and the adulteresse were both condemned to death Leuit. 20. v. 10. : & so was adulterie punished by the Romane lawe called the law Iulia howsoeuer it slept in Iuuenall his time , one that had beene wanton himselfe : Vbi nunc lex Iulia ? dormis ? yet after this law was recalled by the Emperour Alex : l. Castil . C. ad l. Iul . de adulter . therefore Constantine did punish sacrilegious destroyers of marriage by the sword l. quamuis . c . eo . : therfore the Popes stewes are to be abandoned , by whose contagion all Europe hath offended : Let his holines & his fulminant foolish deity as well in all other respects as in this , bee measured by the law of God , and it will appeare to bee abomination by the law of nations and desolation by the law of God , which all nations owe vnto him . God hath said . Non erit meretrix in Israel , nec scortator Deut . 23. v. 17. . By the imperial law it is forbidden , that no bawdrie should be exercised , or any stewes suffered in any place through the whole Romane Empire Nouell . Const . 14. : Lactantius writeth Lact . lib . 6. c . 23. that the deuill consecrateth stewes ( as the Pope doth Iesuites and Seminarie priests , the one for spirituall lust and idolatrie , or if that faile , for treason : the other for carnall ) that he may solemnely laugh both at the adulterer and the adultresse , and so make a banquet of both , which is signified by the Italian by-word . The woman is the fire , the man is the roast-meate , in commeth the deuill , and he playeth the cooke . Flor . giardin . de recreat . In Germany they vse to cut off the heare of an adultresse , and the husband whippeth her out of his house through the streete Far . lib . de mor . gent . : and I haue seene some of them balded here in Englande with a white sheete on their shoulders on the market daie : but that custome is now , as far as I can perceiue disused : I could wish that it were recontinued , that we might know a knaue and a queane by their coloures . And they were wont likewise to haue a bell runge before them , which was a custome vsed amongest the Romanes , as Perseus sheweth , who because it was wont to be runge at nine of the clocke , calleth them therefore Nonarias , a custome discountenanced and broken by Theodosius , but for what reason I know not : shall we vse nothing that the Gentiles haue vsed ? Mahomets law is too light for this fault : for the adulterer is punished but with an hundred stripes . But in Aegypt in auncient time he had a thousand , and the nostrils of the adulteresse were slitted . Solons punishment likewise was too light , yea , and against reason , who imposed vpon him that rauished a maide , the mulcte of ten groates , vpon him that allured a maide to naughtines twentie . But in Athens afterward the rauishour was punished with death , if the rauished partie would not marie him Far . lib . de mor . gent . .

In the prohibition of theft , all Nations haue likewise consented . They that steale a sheep out of the flocke , or an oxe out of the heerd , are both by the Ciuill and common Law theefes . Vlp. lib . 1. ff . de abig . They which steale Doues out of a douecote , are by the ciuill Law accompted theefes Instit de rer . diuisi . §. seru . l. 3. . But by the common Law , felonie cannot be committed by the taking of beastes that be sauage , §. item fer . ff . de acquir . rer . poss . Iustit . de rer . diuis . §. gallinar . l. si pauon . ff . de furt . if they be sauage and vntamed at the time of the taking : nor for taking of Doues being out of a douecote : nor for taking of fishes being at large in a riuer : for such taking is not contrectatio rei alienae , sed quae est nullius in bonis 18. H. 8. 2. 22. Aff. pl. 95. . And the stealing of a Doe which is tame and domesticall is felonie . But as Mast . Stamford well noteth , it seemeth that he that stealeth it should haue certaine knowledge that it is tame : but if the Doe be killed , and then stolen , this is certainlie felonie Stamf . lib . 1. cap . 16. . And he that theeuishlie cutteth a mans vines , by the ciuil Law is punished as a theefe L. scien . ff . arbor . furt . caes . . And by the Law of the twelue Tables , if anie man did cause his beastes to feede vpon , or himselfe did cut and carie awaie Corne growing vpon the ground , if he were of full age he was ordeined to be hanged and to be sacrificed to Ceres , if not ; he was whipped , and did yeeld either the dammage : or if he were obstinate , the double . Wherein the Decem-virs did seeme to haue imitated the seueritie of Draco , who did inflict no lesse punishment vpon the stealers of grapes and hearbes , then vpon homicides , and sacrilegious persons : But the Romanes succeeding altered this , and inflicted no other punishment then that which is aboue mencioned to be imposed vpon him , who is within age : But as the Law of Moses Deut . 23. ver . penult . et vlt . , so it seemeth the Law of Nations did permit a trauailer to relieue his hunger , and to taste so manie grapes as his present vse did require , but not to take them awaie with him . But by the common Law , if a man cut Trees , and at the same time carrie them awaie , this is not felonie , but a trespasse : But if they lie vpon the ground a long time as the goods of the owner of the soyle , this is felonie 22. E. 3. Corone 256. 10. E. 4. 15. Stamf . 25. . The Praetors of Rome did punish a theefe poena quadrupti : and the Iewes with the seauen-folde , or if his goodes would not amount to so much , with all the substance of his house Prouerb . 6. vers . 31. . They of Mysia do break the legges of theefes Far . lib . 2. c . 26. . The Scythians do punish petie larceners with whippes : But if a thing of good value be taken awaie , they must render the nine-folde , or els be put to death Far . ib . . Amongest the Phrygians he was put to death that stole anie instrument of husbandrie , or did kill an oxe that was fit for the plough : because the liuing of these countrie-people did much consist of husbandrie id . ibid . . As in Halyfax , he that stealeth but a yard of cloth is presently put to death : because the whole liue-lode of the most of them resteth incloth .

And as to the interdiction of false witnesse or testimonie , all Nations haue subscribed . The Graecians did enforce their witnesses to sweare at the altar . And Plato saith , that witnesses were wont to sweare by Iupiter , Apollo , and Themis : Cicer . pro Flac . signifying by Themis that they which did sweare falsely did offend contra ius diuinum & humanum : signifying by Iupiter that they should not escape the reuenge of the wrath of God : by Apollo that their falshood and periurie could not be concealed : and one witnesse that hath seene a thing done , hath beene more credited then ten that doe onely testifie by heeresay . Pluris est oculatus testis vnus , quàm auriti decem saith Plautus Plaut . in Trucu . . And to this purpose Homer did imagine two gates of dreames : one made of iuorie by which false shadowes did passe , the other of horne by which true : By the iuorie he meant the teeth , signifying that by report manie fables did growe : by the hornie gates he meant the eyes , shewing that the eye-sight maketh the truest report Hom. in Ili . . Iustinian calleth it oculatam fidem when the thing is knowne by the eye sight § vlt . Iust . de grad . . And he hath diligentlie prouided by his Lawes , that innocencie might be safe against sycophants Nouel . constit . 13. et 16. . And it is a diuine saying in the ciuill Law , Testimonia , instrumenta non tam ad praestigium probationum , quàm e conscientiae quae mille testium loco est fide producenda sunt L. propriet . l. vlt . C de probat . l. eos test . C. de testib . . In England it is seuerelie punished by the Statute of 5. Elizab . and this is according to the Law of God : Non iurabitis in nomine meo mendaciter , neque polluas nomen dei tui : ego dominus Leuit. 19. v. 12. : For truth was so much fauoured amongest the Heathen , that the Aegyptian Iudges had the image of Truth hanged about their neckes .

And the coueting of the thinges that belong to an other man is likewise forbidden : of his wife , Qui aspexeret vxorem proximi sui ad concupiscendam eam , iam adulterium perpetrauit cum ea in corde suo Matt . 5. ver . 28. . And Iustinian his Law is tarte : Si quis non dicam rapere , sed attentare tantummodo virgines sacras auserit , capitali poena feriatur C. de Episcop . et cler . l. si quis non dicam . . And S. Chrysostome saith well : Si mulier ornatur vt viros irritet , etiamsi neminem vulneret , tamen adultera est Chrysost . in Matth . 1. homil . 17. . But some who are glad with fig-leaues to couer their faultes , and to purge their blacke iaundise with a glister of inke , doe excuse their sinne by Dauids example , hauing committed adulterie with Bersabe the wife of Vria , and make that their protection , for which Dauid craued a pardon : But their soules are therefore more sinfull , because they followed Dauid as he was a sinner : the woman was far off , but temptation was neare , as S. Augustine saith August . in com̄ sup . Psal . 51. , his owne flesh was his betrayer , and when he opened two eyes to behold her beautie , hell opened two gates to sinne : by the one of which came adulterie , by the other murther into Dauids hart . The desire likewise of an other mans landes or goods hath been euen of the Paganes detested : Vicinorum sulcos non transgreditor , neque interuertito , saith Iustinian the Emperour Iustini . l. Georg . Tit . i . . Ne transgrediaris terminos antiquos saith Plato Plat . lib . 8. de legib . : And therefore as I haue shewed before , Terminus was worshipped of the Romanes : for as the Poet saith : Omnis erit sine te litigio sus ager . And the Law of the twelue Tables was : Qui terminum exarassit , ipsas et boues sacri sunto . Cu. Pompeius is highlie commended of Plinie , because he would neuer buy anie mans ground that laie neare vnto him Plin . lib . 18. c . 6. , beeing better minded then Achab to Naboth , to whom he said : Damihi viniam quae appropinquat domui meae 3. Reg . 21. : But against such the prophet Esay pronounceth a woe : Vae qui coniungitis agrum agro et domum domui Esai . 5. ver . 8. : But because these thinges are plaine , they neede no further discourse .

The twelfth Chapter . That the rules of Warre and Law of Nations are not to be obserued and kept with Pyrates , Rebels , Robbers , Traytors , Reuoltes , and Vsurpers .

WIth Pyrates , Rebels , Robbers , Traytors , and Reuoltes , the Law of Armes is not to be obserued and kept : for they by offending haue not withdrawne themselues from publique iurisdiction Bald . 3. cons . 96. : for by offending a man may not bee said to be of more price , or of greater libertie , then he was before Paulus l. 63. ad leg . Falc . , and for an other reason they may not claime aduantage by the Law of Armes , because that Law springeth from the Law of Nations , and such persons may not enioie the benefite of that Law to which they are enemies : To these men which haue withdrawne themselues from the communion and societie of men : and as Florus sayth Flor . lib . 3. , haue broken the league of mankinde ; how can the Law of Nations , which is nothing else but the communion and league of Nations , extende anie fauour . Pyrates ( as Plinie saith ) are enemies to all men lyuing : and therefore Cicero sayth , that if thou doest not bring to Robbers or Pyrates the raunsome which thou hast promised for thy life , there is neither offence , nor fraudulent dealing : no though thou hast promised with an oath Plin . lib . 2. c . 46. Cicer . pro leg . manil . et 3. de offic . . Spartacus that notable roague did mooue Crassus to contract a league with him : But he was with indignation reiected Appi . in Mithrid . et 1. ciuil . . Tacfarinas that famous robber of Affrike grew to such height of arrogancie , that he sent Embassadors to Tiberius the Emperour : but his armie was sharpe against him and said , that Tacfarinas dealt verie reprochfully with him , because hee being no better then a robber by highwaies , did notwithstanding so deale with him , as if hee had beene a publique or iust enemie Tacit. Annal . 3. . Warre hath neuer been as Heliodorus well obserueth , compounded or determined by articles or leagues with such dissolute persons , but either they haue ouercomed , and so suruiued , or els haue been ouercome , and so haue beene put to death Heliod . lib . 1 : Therefore some Alberic . Gentil . lib . 1. de iur . bell . c . 4. doe woonder that D. Hotoman dare affirme that the Law of Nations doth extende to fugitiues and robbers Hotom . 7. vlt . quaesti . : and his first reason is , because there is no Law which doth interdict or forbid to couenant or contract with them : and such thinges as are not verballie forbidden , are implicatiuelie permitted : This reason is of no force , for in that they be enemies to all , and doe spare no man , they ought not to protect themselues by that which is the Law of all men . The question is not what may bee done vnto them , and how manie haue dealt with them , but how by rigor of Law and strict reason they ought to be dealt with . To dispute of Law , is to dispute of a bonde whereby we are bound , but wee are not bounde to such . He bringeth likewise for proofe the saying of Caesar : Should it not bee lawfull for Citizens to send embassadours to their fellow citizens : when the same hath been permitted to roagues and theefes haunting the wilde woodes of the Pyrenean mountaines Caesar . lib . 3. de bel . ciuil . . But this maketh nothing to his purpose : for Caesar doth not there directly affirme that it was lawfull , but he spake it rather to bring the Pompeian faction into hatred , signifying that they did afforde the securitie of embassing to such lewde persons , whereas to their fellowe Citizens they did vtterlie denie it : But heere difference must be held betwixt an absolute monarch which taketh pray or spoyle vppon the seas , and dominions of other princes , and these which bee pirates without all colour of iustice : therefore the Pirats answere to Alexander is misliked , Alberic . Gentil . lib . 1. de iur . bel . c . 4. when he said boldly , That because he did robbe on the seas with one small pinnesse , therefore hee was accompted a pirate : but because Alexander did the same with many great gallies , therefore he was tearmed the Gouernor of a fleet Cicer . 3. de repub . : howbeit this saying of the pirate seemeth to be commended by Cicero Ibid . : and to S. Augustine August . l. 4. de ciuit . dei . it seemeth to haue beene spoken truely and eloquently , which is very straunge , vnlesse they did accompt Alexander a robber , whom some doubt not to call so Luc . 10. Senec . 1. de benefic . : and Alciat also is deceiued , which not onely alloweth the said speech of the pirate , but euen piracie it selfe Alci . 1. Cons . 1. , because forsooth pirates are tollerated of some princes , and there were some nations which did publikely practise and put in vre that course of life . The Normanes ( saith P. Emilius ) as antiquaries doe thinke , did recken and repute piracie amongst laudable things p. Emil . lib . 3. Franc . : And Alciat reasoneth further , That they offend lesse then others which do so spoile vpon the sea , where the law of nations onely is of force and no other law : for ( saith he ) by that law the sea is common . This manner of discoursing becommeth not Alciat : but regard is to bee had , whether hee that before was a robber do afterward become a lawful & iust captaine , which Iustine affirmeth of Aristonicus Iustin lib 35 : Frontinus of Viriallius Frontin . lib . 2. c . 5. : and Appian of Spartacus : of Apuleius who was proscribed , and of Sextus Pompeius Appia . lib . 1. & 4. bellor . ciuil . : which is not so much effected by the leuying of a great armie , or the increase of the same , as these writers and other historians Herodia . l. 1. seeme to think , but by the enioying of a good and sound title , and by the maintaining of a publike cause : for when Viriallius being before a robber did employ himselfe wholie for the defence of the libertie of his country he became a iust captaine , and may well be said to haue borne lawfull armes : for which cause the Romans did conclude peace and league with him , and did likewise call him their friend : So Arsaces whilest he sought to winne the crown of the kingdome of Parthia , being his cuntrie from the Macedonians , was when he had committed many robberies & pillages , highted a lawfull king : and Aristonicus whilest hee claimed the kingdome of Asia by right of bloud and course of succession , might well be tearmed a gouernor in war and thought to haue pursued that contention which is commonly called war . And so it may be noted that God himselfe would that Sampson should not moue against the Philistines without cause , but so did bring to passe that from priuate occasions he should as it were by degrees ascend to a publike quarrel Iudic . 14. : but they which ground not their wars vpon a publike cause are not properly enemies though they haue armes , and do terme themselues gouernors , & though they encounter such as be lawful gouernors , and haue vnder their regiment a complete armie of soldiers : he is properly an enemy which hath a court or a commonweale , a treasurie , & power to make league , peace and truce . And Charles Martelle did say of the Saracens that they could not therefore cleane themselues from the fault of robbers because they went in great troopes , & because they had captaines , & tentes , and ensignes P. Emil . li . 2. , sithence they had no iust cause of war which is the only warrant of bearing armes Ceph . consil . 620. : What shall then be said of these French men which were taken in the Portugall warre of the Spaniards , and were not vsed as iust enemies : the soldiers I meane of Don Antonio were handled as pirates : yet the very historie doth conuince that they were not pirats : for they did shew forth their kinges letters , the king of France his letters whom they did serue , & not Don Antonio though for him they did fight Connest . l 9 : but they which haue beene subiect to others , & are recoiled from their loyaltie of lieges becomming rebels , let them beware how they send embassadors to him from whom they haue reuolted . But it cannot be discerned by the law of nations which Phillip late king of Spaine did to certaine Flemings which came to him as embassadors , though they were neuer vnder his legeance or subiection , their estates hauing bin free from time immemorial , as al histories of account do with clear voice pronounce : And Dionisius did imprison the embassadors of the Siracusanes , because that city hauing driuen the tirant into his tower did set themselues at libertie Plutarch . in Dio . : but Buchanan seemeth to erre , which compareth two iust princes , nay such as himself confesseth to be most iust Buch . in lib . de re . Scot . , namely Hiero of Siracuse , and Cosimo Medices Duke of Tuscana , to two great theeues which did iustly diuide the pray , & did rule well though they came vniustly by it : for how was Cosimo a robber , if hee did vndertake the gouernement of that citie which did willingly offer vnto him the gouernment , he shold perhaps haue suffered it to be subdued by some forreigne Lord : or els haue left the regiment to others who would haue hazarded that ship vpon rocks and tempests , whereas that excellent man knew well how to keepe the ship in the hauen : but it seemeth that the law of armes is not bee kept to an vsurper : and therefore Constance the Emperour could not iustly bee reproued if hee had punished these embassadors , which Iulianus being consorted with him in the Empire by the French armie did send vnto him , as he threatned hee would , for both Iulianus and the armie were rebels Amm. li . 21 . But this is to bee vnderstood onely of such rebelles and such vsurpers as haue beene sometimes in subiection , and vnder the leigeance of some absolute Monarch : for they which doe onely breake league or friendship , or ancient entercourse , are not to bee excluded from the right and benefit of embassage Alber . Gentil . l. 2. de legat . c . 7. : for how often did the Volscians , Latines , Spaniards , and many others reuolt from the Romanes , and yet sent embassadors to them without hurt or fear of danger Liui . lib . 5. 6. 29. &c. & Appi . lib . 1 de bel . ciuil . : they may lawfully claime the right of embassage , because they had and enioyed it before their reuolt , but otherwise it is of subiects , because they had it not so , neither is it reason that they should gaine any new right , or haue any aduauntage by their crime or offence .

The thirteenth Chapter . That by the law and practise of nations , warre is not to be maintained against infidels , onely because they are infidels , and that princes in their realmes may inflict punishment for straunge worships .

IF religion be of that nature , that no man ought against his will to bee compelled vnto it by force of armes , and that be tearmed a new and vnusuall preaching which exacteth faith by blowes : then it followeth that such war is not iust c . 35. 23. q . 5. c . 1. 3. disti . 45. c . 3. de babt . . It is a point of irreligiousnes ( saith Tertullian ) to forbidde the opinion conceiued of the deitie , and that it shall not bee lawfull for mee to worship whom I would , but I shall bee constrained to worship whom I would not Tertul . Apolog . et ad Scap . : Faith is to be perswaded , not to be enforced ( saith Barnard ) Barn . cantic . ser . 66. : And Hilarie saith , that by a newe example men are compelled by armes to beleeue Erasm . pref . Hill . . So Lactantius saith , that religion must be established by words , not by swords Lactant . 5. Iustin . 20. 21. : & so Arnobius saith to his aduersaries : Because ye can do much by force and weapons , doe ye therefore thinke that ye do exceed vs in the knowledge of the truth Arnob . adu . ge . 4. ? Ye haue heard authors , now heare reasons . That which is against the nature of a thing cannot tend to the effecting or preseruing of that thing , but to the destroying of it : That which standeth by his owne strength is not to bee vpheld by other supporters . This opinion of not mouing armes for religion , Victor . relect . Franciscus a Victoria a verie learned man , affirmeth to bee allowed of all writers none exempted : therefore he saith that this could bee no iust cause to his countrimen the Spaniardes to maintaine warre against the Indians . And Didacus a Couarruuia a Spaniard likewise & a learned Lawier Couarer . reg . pre . §. 10. , doth vouch many Canonistes and Diuines which doe teach the same . Baldus also affirmeth , that it is not lawful to wage battell against infidels liuing with vs in peace , and not being iniurious vnto vs Bald . lib . 5. de iustit . : yet Didacus saith , that Aquinas is of a contrarie opinion Couar . vbi supr . . And the fathers of the councell of Toletum did make a decree touching the afflicting of hereticks by warre , which is recorded in the cannon lawe c . 3. de her . c . 5. dist . 45. . And Barnard mouing Lewis king of Fraunce against Asia saith : Can any war seeme more iust to the then that which is most holy . The Lacedemonians also amongst other obiections made this a cause of their warre amongst the Athenians , and said that they were prophaners of religion : and the Athenians did on the contrarie parte charge the Lacedemonians with this , that they did drawe them that yeelded themselues out of the temples , and killed them Thuc . lib . 1. . But surely such pretenses are but colorus of auarice and crueltie , for there is no religion so barbarous , which moueth vs to slay men of a contrarie religion Na . Co. li . 1. . King Ferdinand entitled the Catholike , did couer all his dishonest desires with the vaile of religion , as Guicchiardine noteth Guicc . li . 12. . And Charles the Emperor the nephew of Ferdinand did not garnish his ambitious enterprises with any other colour Iou . lib . 30. . But the warres of the French and other people of Europe which did relieue the Christians vexed of the Turkes , and reuenging the iniuries done to Christ haue beene liked & allowed of Couar . reg . pecc . §. co . : but that is an other question of defensiue war , which without all doubt is lawful , if it be maintained by them that may vndertake the defence lawfully . But now the question is whether only by pretence of religion war may be vndertaken , and this hath bin denied , and the reason is , Alber . Gentill . lib . 1. de iur . bel . c . 9. for that the cause of religion is not betwixt man & man , but betwixt man and God : neither is the right of any man preiudiced for a diuers religion , because the bond of religion is onely to God : & it is a law betwixt God and man . But here wee doe not speake of such , which are altogether voide of religion , and liue rather the life of beastes then of men . For they like pirates , the common and dayly enemies of all men are to be pursued by war , & to be brought by armes into compasse , and to the order of ciuill conuersation . For they may iustly seeme to bee iniurious to all men which in the bodies of men carie the appetites of beastes , yea most sauage beastes : for that there is some sparke of religion in some kindes of brutish creatures , hath beene deliuered and belieued . These are they which fight with God after the manner of the Giantes , which is as much to say as to resist nature , for religion is parcell of the law of nature Caluin . li . 1. institut . . And ( as Cicero saith , there is no nation which haue not some religion Cicer . lib . 1. de nat. deor . : for though many nations follow not a good religion , yet there are few voide of all religion . Baldus . 1. cons . 316. Where Agathias said , that the Almaines wer worthy of pittie though idolaters . Therfore such are to be suffered and to be taught , not to be compelled & exterminated : and many ciuilians haue answeared in the point , that the Iewes were not to bee molested nor enforced to the faith , though they sithence Christes doctrine reuealed vnto them differre nothing from Idolaters . Now let vs consider whether warre and sword ought to be assayed against such as despised the religion receiued in a Citie or commonweale : but doubtlesse they which haue vsed strange worship haue bin in all commonweales seuerely punished . Plato against such awarded a capitall punishment Plat . 10. de legi . : the ciuill lawes haue made diuers punishments Iust . 1. Apol . : for this cause Socrates is killed at Athens : Diagoras is proscribed , and some in other places be punished , slaine Ioseph . 1. App. Cicer . 1. de natur . deor . Plut. Nic . . Anacharsis was slaine of his countrymen : the Thracians for his greekish rites , which he did vse being returned out of Greece Herodot . 4. . And Tiberius was hote against externall ceremonies , and against the Aegyptian and Iewish rites . And Augustus did vse the accustomed religion , and did not tollerate anie new Sueton . 93. Dio . 53. 54. . And so Maecenas did counsaile Augustus to punish such as brought in new or foreine religion : because they drewe manie into conspiracie , and to other inconueniences , verie preiudiciall to a Monarchie Dio . lib . 52. . And some Princes for the same cause doe mislike the doctrine of Luther Guicc . 13. 20. . But other Princes which hearken to Luther are of a contrarie minde . Surely such religion as distroyeth the gouernment of common weales and Monarchies , is not to be suffered Aelia . lib 9. : But if the religion be good and do not hurt Princes , they that withstand it are like the stubberne Persians which resisted Daniell Dan . 6. . But some perhaps will saie , that diuersitie of religion hindreth the societie of men , as contrariwise the vnitie thereof doth preserue it , which Philo speaketh of his countriemen the Iewes Phil . de for . . And others haue said that by the difference of religion and sectes , and by the distance of life and maners hatred and seditions arise , by which euils , cities often do perish . All diuersitie of religion dissolueth gouernment as Cardanus thinketh Card . 3. de sap . . And a moderne polititian doth earnestlie auouch the same Lips . in polit . . Wherefore Procopius saith , that Christians by disputing subtillie of their Faith , and contending amongest themselues , doe stir vp sedition Procop . 3. Goth . . And an other historian addeth : If at anie time controuersie doe arise of Faith , parents do not onely dissent from their children , but the husband from the wife in seditious manner Nic . Call . 17. Histor . 7. . Valentinian and Gratian both famous Princes , doe denie vnto Valens neare vnto them in bloude , aide and succour for this diuersitie of Religion Zonar . Cedr . Callis . 11. histor . 49. : and added further , that it was not iust nor godlie to helpe an vngodlie man , and to enter into a societie with an enemie of God , a professed Arrian . And vpon that reason Iustinian the Emperour mooueth the French against the Gothes , because they also were Arrians Procop . Goth . 3. 4. . All which come to this summe , that the Princes cause may seeme iust , who suffereth one Religion , and which maintaineth it by punishments . Yet some are of an other minde , that force is not to be vsed against them which embrace a contrarie Religion : but they temper their opinion with this caution : Nisi quid detrimenti illinc respub . capiat . Vnlesse the common weale may receiue some dammage thereby Alber . Gen. lib . 1. de iur . bel . c . 10. . And therefore Augustus is reported to haue fauoured the synagogues of the Iewes , because to him they seemed not Bacchanals or conuenticles made for disturbing peace , but the schooles of vertue Phil . de legati . : for many times vnlawfull assemblies be vnder pretence of Religion l. 2. de extra . or . l. 1. de coll . , which are neuer without daunger , and haue alwaies been forbidden Mant . in orat . pro Sext . & Asc. pro Cornel . : But when it is apparant that such meetings are not made of euill intent , the prohibitiue Law ceaseth Alciat . 5. consil . 107. Launpr . Plin . vltim . epistol . 103. 104. Euseb . 3. 27. 33. Tertul . apol . . And there is an Epistle of the Emperour Marcus extant , forbidding Christians to be troubled , vnlesse they were conuicted to haue attempted some thing against the common weale , and if nothing were obiected vnto them but diuersitie of Religion . And Alexander Seuerus did allowe the priuiledges of the Iewes , and did tollerate Christians . And Traian did before commande , that the Christians should inioy their libertie being instructed by Plynie of their innocencie Ioui . lib . 18. . Euen in S. Peters Church at Rome the Easterne people and the Aethiopians doe offer sacrifice after their maner , & are mainteined at the Popes charge Ioui . lib . 18. . The Lutheranes are permitted to haue their publique exercise in all the principalities and dominions of the house of Austrich in Germanie . But diuers Religions are not permitted of the Lutherane Princes : though Bellarmin affirmeth it , but of the Papistes which is denied by him Bellarm . 5. cont . lib . 3. c . 19. et 18. . One Religion onlie is not professed in the citie of Augusta , of Ratisbona , of Frankford , and other free Cities of Germanie In such sort liue the Polonians , the Heluetians , the Rhetians , and thou either deceiuest vs , or els art deceiued Iustus Lipsius Lips . de vna relig . , which deniest that there is but one Religion in any one principalitie of Germanie . There is indeed but one suffered of the Lutherane Princes , & this is true , notwithstanding Bellarmins premised assertion : But of the Princes of Austria not onlie the religion of Luther is tolerated , but euen the heresie of the Anabaptistes . And whereas Bellarmin saith , that three onelie Emperors did permit diuers religions : namelie Iouinian , who was reprooued by Synode : Valens who was an Arrian : and Iulianus who was an Apostata . Surelie there is none of sound iudgement but will agree with him in this , that Princes ought principallie to regarde the vnitie of Religion , as a thing most pleasing vnto God : who hath said by his holie Apostle Ephesi . 4. vers . 5.6 . Vnus Dominus : vna fides : vnum baptisma : vnus Deus et pater omnium {αβγδ} . : If God , Faith , and Baptisme in generall , and quocunque modo would haue serued , Paule who in his heauenlie Epistles vseth not one word superfluous , would not haue said vnus , vna , vnum : would not haue vrged it , would not haue exacted it , would not haue cried for it . Yet I would not haue weapons and armes to stir vp warre for Religion onelie , if rebellion or disloialtie be not mixed with it : For heresies may be punished , and yet citra bellum , Trismeg . de nat. deo . Dio lib . 42. without warre . Let Lipsius therefore be silent , who saith that it is necessarie to contende by weapons , whilest some goe about to preferre their religion before other some : or else saith he , it will be no religion , which is cold and calme . To this warlike note & hote humor , which argueth his want of pollicie , and that he is neither wise as a serpent , nor simple and milde as a doue . It may be aunswered that warres for Religion are onelie there to be tolerated , where there is no religion at all , or where subiectes pretende religion as a cause of their rebellion , not where there is diuersitie of religion . Nay it is no religion which is hurt to the slaughter of Citizens and subiectes , and the desolation of kingdomes or countries . Are not the Aegyptians to be laughed at , which with mutuall warres and woundes did afflict themselues , for a monstrous and absurde religion on both sides Trismeg . de nat. deo . Dio lib . 42. : For it appeareth by Diodorus Siculus , that the diuersitie of Religions was to this purpose brought into Aegypt , that the people might disagree amongest themselues , and so haue no leasure nor opportunitie to conspire against their king Diodor . Sicul . lib . 2. . The Aegyptians ( saith one Phil . de 10. ) are by nature wont of little sparkes to raise great flames : For the Aegyptians as others report of them , are men vnconstant , raging , proude , iniurious , desirous of nouelties , and willing to chaunge a present state wish an erronious libertie Vopisc . Dio 39. 42. : And therefore it was well considered by Augustus and Tiberius Emperours , that no Senator , that is , no noble nor mightie man should gouerne Aegypt , or should goe into Egypt Tacit. annual . 2. . But that Princes may commaunde the due obseruation and practise of Religion , according as God infourmeth their consciences by the rules of his sacred worde , and the instruction of his true teaching spirite , in their Realmes , dominions , and kingdomes , wherein they haue absolute power , and may with seuere punishments correct the frowardnes of men addicted to straunge worshippes , may by the vnited practise of all common weales be conuinced . A king saith Aristotle in auncient time was the Gouernor in warres , the Ruler in iudgements , the maintenour of Religion Politic . lib . 3. c . 11. et 5. . This hath been obserued of the Assirians , Persians , Medes , Iewes , Graecians , Romanes , and all other the most eminent Nations of the world Iustin . Procop . Cursius . Varro . D. August . 3. 4. 5. et 6. de ciuit . dei . . And so it is reported in Scripture of Asa , that he tooke away the altars of the strange Gods , and the high places , and brake downe the Images , and cut downe the groues , and commaunded Iudah to seek the Lord God of their fathers , & took away out of all the cities of Iuda the high places , and images ; therefore the kingdome was quiet before him 2. Chronic . 24. . And Iustinian the Emperour speaketh imperiously : We command ( saith he ) the blessed Archbishops of Rome , Constantinople , Alexandria , Theopolis , and Ierusalem , to receiue for ordeining and installing of Bishops , onely that which this present law doth allow Nouel . constit . 123. . Archadius setteth downe both law & punishment in some cases of religion . If any Bishop refuse to communicate with Theophilus , Atticus , and Prophyrius , he shall lose both his Church and his goodes : if any that beare office , they shall forfeit their dignitie : hee shall lose his seruice : if any of the common people , let them be fined and exiled Nicephor . li . 13. c . 30. Sozome . lib . 8. c . 24. . I will not insist longer vpon a matter plaine , but will cut off these lines to auoid tediousnes .

FINIS .

Faultes . Leafe . Corrections . Agree fol. 4. a. disagree ar fol. 6. b . is prescribe 9. b . proscribe Dominus 13. b . dominus soundly 20. b . fondly and 21. b . one Aroutius 24. a. Acontius repeated 24. b . reprooued ar lesse 38. b . at least Cluitius 38. b . Cluilius victoria 41. a. victori Bataeri 42. b . Bataui farelet 43. a. forcelet repelit 44 b . repetit Latinum 54. b . Latium indice 54. b . iudice conuay 64. a. courage cibicall 64. b . ciuicall Fulminea 77. b . Fluminea Clesoninus 77. b . Cleonymus ipsas 81. a. ipsus Viriallius 83. b . Viriathus discerned 84. a. defended ( There want these wordes ) 90. a. if any souldier .